DANRVAN Posted February 15, 2014 Report Share Posted February 15, 2014 Client was granted custody and rights to claim the children. But ex wife claimed them anyway and client's return was rejected. Can someone tell me how the process works to straighten this out. I know the next step is to file a paper return, but then what happens. Thanks for any suggestions you might have. Dan Quote Link to comment Share on other sites More sharing options...
MsTabbyKats Posted February 15, 2014 Report Share Posted February 15, 2014 The IRS will tell them they have to work it out. The first one who claims the dependent gets the dependent. I'd file paper return with a copy of the custodial agreement unless the ex refuses to amend. Quote Link to comment Share on other sites More sharing options...
kcjenkins Posted February 15, 2014 Report Share Posted February 15, 2014 Start getting together all the documents you can to support that the kids actually live with him, school records, doctor's records, etc, since the IRS has usually demonstrated an anti-father bias. And advise the client he will just have to wait for the wheels to grind. There is nothing you can directly do. Although he could file a motion with the court that issued the divorce decree, since she has violated that court order, unless she has resources to go after there's not much point. 1 Quote Link to comment Share on other sites More sharing options...
kcjenkins Posted February 15, 2014 Report Share Posted February 15, 2014 The IRS will tell them they have to work it out. The first one who claims the dependent gets the dependent. Not true, the one who has the child living with them gets the dependant, but it will take time for that to be settled. 1 Quote Link to comment Share on other sites More sharing options...
MsTabbyKats Posted February 15, 2014 Report Share Posted February 15, 2014 Start getting together all the documents you can to support that the kids actually live with him, school records, doctor's records, etc, since the IRS has usually demonstrated an anti-father bias. And advise the client he will just have to wait for the wheels to grind. There is nothing you can directly do. Although he could file a motion with the court that issued the divorce decree, since she has violated that court order, unless she has resources to go after there's not much point.The legal fees probably would outweigh the tax benefit. Foe the future....dad should probably be first in line to file and claim the child...even if it means amending when he gets all his information. Quote Link to comment Share on other sites More sharing options...
MsTabbyKats Posted February 15, 2014 Report Share Posted February 15, 2014 Not true, the one who has the child living with them gets the dependant, but it will take time for that to be settled. This is not what I was told by an IRS agent. They will not get involved in family disputes. Eta...of course when the second return comes in with documentation...they could ask mom for proof of support....but as you said...it could take a long time. Quote Link to comment Share on other sites More sharing options...
Lion EA Posted February 15, 2014 Report Share Posted February 15, 2014 The IRS looks to the parent who had the kids the most nights during the year. File on paper and tell your client to gather documents that show the children lived with him: report cards, doctor bills, even pages from divorce decree which carries no legal weight with the IRS but may help with their reluctance to believe the father had physical custody, letters from his church and neighbors attesting to the children with the father, magazines or mail in the childrens' names arriving at his address, his 2013 calendar with notes about after-school events/parent-teacher-conferences/doctors' appointments/all the things we schedule for our families, everything you/he can think of for 2013 so he'll be prepared when he gets a letter from the IRS. By the way, a letter from his lawyer to hers might cost only 15 minutes of the paralegal's time and make his ex think twice before filing for 2014, unless she has more money than him to spend on lawyers and enjoys being the defendant in a lawsuit. 2 Quote Link to comment Share on other sites More sharing options...
Richcpaman Posted February 15, 2014 Report Share Posted February 15, 2014 This is not what I was told by an IRS agent. They will not get involved in family disputes. Eta...of course when the second return comes in with documentation...they could ask mom for proof of support....but as you said...it could take a long time. Tabby: The court decree of their divorce carries no weight with the IRS. The IRS sets the rules to who can claim who. And "Court decree" is NOT in that language. Rich 2 Quote Link to comment Share on other sites More sharing options...
Pacun Posted February 15, 2014 Report Share Posted February 15, 2014 Get all the information together and be careful. Ask how many nights in 2013 the children slept with both. Then how many nights with the mother and how many nights with the father. Remember that the IRS's first tie breaker will be the nights the children spent with each parent. The IRS doesn't care what the paper from the court reads and they will not pay any attention to it. If the children spent exactly the same numbers of nights with each parent, they the IRS will consider the second tie breaker which is income. You don't have to be the first one to be filing. The first who files will receive the refund but he/she might have to return it with interests. This is what I do: I send a plain 1040 and I attach a letter from the tax paper stating why he believes he has the right to claim the children. That will be enough for the IRS to start its own investigation. Quote Link to comment Share on other sites More sharing options...
Mr. Pencil Posted February 15, 2014 Report Share Posted February 15, 2014 Client was granted custody and rights to claim the children. The right to claim the children is determined by the tax code, not the divorce decree (at least, not a recent decree). If the kids live with the mother, she can claim them. Period. Even when the decree specifically requires mother to sign Form 8332, if she does not sign she can claim the children. Period. There is nothing the father can do about it except file for a rehearing in family court. He will still lose on the tax issue, but may get a change in support payments. Quote Link to comment Share on other sites More sharing options...
Lion EA Posted February 15, 2014 Report Share Posted February 15, 2014 And, it doesn't matter how much support each parent provides. It matters only that the child did not provide over 50% of his support. Quote Link to comment Share on other sites More sharing options...
Pacun Posted February 15, 2014 Report Share Posted February 15, 2014 I don't like the title of this post. ONLY if I slept each night with these children, I would state that. Quote Link to comment Share on other sites More sharing options...
Lion EA Posted February 15, 2014 Report Share Posted February 15, 2014 Wait a minute. When OP said father had rights to the children, did he mean he has rights to have the children live with him and the children actually did live with him? If the mother had the children for more nights during the year, she DOES claim the kids as dependents. If that was the case, then your client files Single with 0 dependents. He certainly can go back to court to try to amend the custody agreement to include the ex signing a 8332, but is it worth the cost? Why don't clients consult with us before they sign a legal document that has tax implications?! Quote Link to comment Share on other sites More sharing options...
DANRVAN Posted February 15, 2014 Author Report Share Posted February 15, 2014 There is no doubt the father is entitled to the claim the kids and mother cannot legally claim them. Pacun, you mentioned an IRS investigation. How long does that process usually take? Thanks for all your comments. Quote Link to comment Share on other sites More sharing options...
Mr. Pencil Posted February 15, 2014 Report Share Posted February 15, 2014 the father is entitled to the claim the kids... ex was supposed to sign 8332. These two statements are inconsistent. 1 Quote Link to comment Share on other sites More sharing options...
Jack from Ohio Posted February 15, 2014 Report Share Posted February 15, 2014 There is no doubt the father is entitled to the claim the kids and mother cannot legally claim them. Pacun, you mentioned an IRS investigation. How long does that process usually take? Thanks for all your comments. These two statements are inconsistent. Mr. Pencil is correct. "entitled to claim the kids" is based soley on the IRS definitions and regulations about dependents. PERIOD. If the mother is the custodial parent, she will win the dispute with the IRS. However, if the divorce decree states that the father is to claim them certain years, then the father has the right to go back to the court with a claim of contempt of court charge for not following the decree. This, however, will not affect the IRS decision about dependency. Quote Link to comment Share on other sites More sharing options...
MsTabbyKats Posted February 15, 2014 Report Share Posted February 15, 2014 So, what's the bottom line, whose home the kid slept in more? Quote Link to comment Share on other sites More sharing options...
Pacun Posted February 15, 2014 Report Share Posted February 15, 2014 The investigation starts with two letters, one for each parent to prove their claim. You client should list each night they children slept under his guard, which means in the same house. So, in your case, I would paper file the return and attach a letter to the return signed by your client stating why he qualifies to claim the children. Mentioning the court papers on that letter will only piss off the officer reading it because we all know the rules and we also know that it doesn't have any weight on the IRS decision. Quote Link to comment Share on other sites More sharing options...
Ranger Posted February 15, 2014 Report Share Posted February 15, 2014 The kids spent more time with the father so he is entitled to claim them. I have not seen the divorce papers yet but client said there was a statement that ex must sign tax a " tax form". In my second post I made a reference to that as being form 8332. After a second thought, I went back and deleted that line but not before Mr. Pencil caught it. Your right, those two statements are not consistent. I have no idea what the lawyers came up with but will find out next week. Thank you for the advice Pacun. Quote Link to comment Share on other sites More sharing options...
Pacun Posted February 15, 2014 Report Share Posted February 15, 2014 RANGER, why will you be reading the divorce decree for DANRVAN's client? I am confused. Quote Link to comment Share on other sites More sharing options...
jklcpa Posted February 15, 2014 Report Share Posted February 15, 2014 DANRVAN and Ranger must be the same person. Both user names have the exact same IP address. DANRVAN/Ranger, why do you use 2 names? Quote Link to comment Share on other sites More sharing options...
Mr. Pencil Posted February 15, 2014 Report Share Posted February 15, 2014 The kids spent more time with the father so he is entitled to claim them. Thank you for the advice Pacun. "Time" is not one of the statutory factors for determining who can claim a dependent child. Various units of time may apply, such as days or nights or months or years, and qualifiers like normal or temporary, so assumptions are not reliable. It sounds like the divorce agreement was for the children to live with the mother. Before I would believe that didn't happen, I would ask for a detailed explanation that doesn't involve the divorce decree. I confess to being overly conservative on the point--in my experience, the father is almost never right. 3 Quote Link to comment Share on other sites More sharing options...
BulldogTom Posted February 15, 2014 Report Share Posted February 15, 2014 Client was granted custody and rights to claim the children. But ex wife claimed them anyway and client's return was rejected. Can someone tell me how the process works to straighten this out. I know the next step is to file a paper return, but then what happens. Thanks for any suggestions you might have. Dan About 10 years ago, I had a new client in the same situation. (funny, I just did her Daughter's tax return 2 hours ago). The mother had physical and legal custody of the kids, but the dad kept filing first. I got involved late in the situation, and the client had a 90 day letter from the IRS. We filed a Tax Court petition and gathered all the documentation. The school records, birth certificates, and the lease for the home she lived in. The IRS sided with the taxpayer. The next year, the e-file rejected again. Same situation, father filed first. We sent in a paper filed return with a copy of the dismissal from the tax court from the previous year. Check arrived in 6 weeks. Never had an issue again. I still do her return and both of her daughters returns. Tom Hollister, CA Quote Link to comment Share on other sites More sharing options...
BulldogTom Posted February 15, 2014 Report Share Posted February 15, 2014 DANRVAN and Ranger must be the same person. Both user names have the exact same IP address. DANRVAN/Ranger, why do you use 2 names? I think I see him on other tax boards using Ranger. Maybe he forgot what board he was on. Tom Hollister, CA 1 Quote Link to comment Share on other sites More sharing options...
Lion EA Posted February 15, 2014 Report Share Posted February 15, 2014 The IRS is federal and pays no attention to state court rulings such as divorces. Yes, the bottom line is where did the child spend the most nights, with the mother or with the father. Paper file with your client in the correct manner. Tell him what type of supporting documentation to start gathering now, and tell him to contact you as soon as he gets an IRS letter. Let him consult with his lawyer about what his ex is supposed to do or not do per their divorce decree. 1 Quote Link to comment Share on other sites More sharing options...
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