hey, i have a really stupid tax question(please don't laugh at me)

[christineseip]

this will be the first year i'm filing single with a child.

i have primary physical custody of my daughter, and my ex pays child support. do i automatically get to claim her as a dependent? as my ex has moved out of state without a forwarding address and phone #, touching base with him isn't an option. even his lawyer doesn't know how to find him-the lawyer fired my ex as a client last week.

like i said-stupid. but i need to know.

[TC]

Typically this is spelled out in detail in a Divorce Decree...assuming you are divorced, first I would re-read your Decree to see what the exact verbage is there.

Otherwise, in situations like this it is common for the person with the physical custody to retain the right to claim the child as a dependant....so in your situation, I would advise you to file that way....but I would also check the Decree to see what it says.

TC

[livealittle]

what they said and the irs has it's own rules regarding if both parties claim the children.

my divorce decree says that I have get to claim the children on my tax return each and every year beginning with 2005. technically, if your x claims the child, he has to have you fill out IRS form 8332 linked here

http://www.irs.gov/pub/irs-pdf/f8332.pdf

and attach it with your tax return. The irs used to let you attach a copy of your divorce decree, but they no longer allow that beginning with tax year 2009.

[Lee Borden]

If your decree is silent, the exemption belongs to the custodial parent. No need to contact Dad about it. If Dad claims her too and the Service challenges you, you simply demonstrate that you're the CP. You win; Dad loses.

[livealittle]

If your decree is silent, the exemption belongs to the custodial parent. No need to contact Dad about it. If Dad claims her too and the Service challenges you, you simply demonstrate that you're the CP. You win; Dad loses.

most of the time, this is true, Lee.

However - the IRS has it's own rules about who gets to claim the children when both the CP and the NCP claim the child if it is not spelled out in the divorce decree.

Here is the text from publication 504 regarding if 2 people claim the child.


Table 4.When More Than One Person Files a Return Claiming the Same Qualifying Child (Tie-Breaker Rule)

*IF more than one person files a return claiming the same qualifying child and ...

   1 - only one of the persons is the child's parent

   2 - two of the persons are the child's parents and they do not file a joint return together,

   3 - two of the persons are the child's parents, they do not file a joint return together, and the child lived with each parent the same amount of time during the year,

   4 -     none of the persons are the child's parent,

*THEN the child will be treated as the qualifying child of
the ...   

    1 - parent.   

    2 -  parent with whom the child lived for the longer period of time during the year.   
     
    3 -   parent with the higher adjusted gross income (AGI).   
 
    4 - person with the highest AGI.   

here's a link to the publication.


http://www.irs.gov/publications/p504/ar02.html#en_US_publink100044170

[christineseip]

thanks-that puts her on my tax stuff, then-she's been with me all along

[Me2]

Oh great....

He lived with me for longer than the other parent, yet the other parent has the higher AGI.

So we're left unclear?  And we're gonna argue over it again...huh?

No I'll file first, and then deal with it later.

[livealittle]

Oh great....

He lived with me for longer than the other parent, yet the other parent has the higher AGI.

So we're left unclear?  And we're gonna argue over it again...huh?

No I'll file first, and then deal with it later.

what does your divorce decree say?

mine specifically says that I get to claim the children each and every year beginning in 2005.

if yours does not, the CP gets to claim the child/ren. If your divorce decree says you have primary physical custody, you get to claim. UNLESS - you have filled out and signed the form (8332 I think is the number) giving the exemption to the other parent. IF you both claim the child, then the irs will audit you both. It starts as a paper audit which means you get a letter and respond in writing. IF it continues, then you send in more documentation.

dealing with the irs isn't nearly as scary as many people think it is.

[InDenial]

Oh great....

He lived with me for longer than the other parent, yet the other parent has the higher AGI.

So we're left unclear?  And we're gonna argue over it again...huh?

No I'll file first, and then deal with it later.

I believe that the correct interpretation of the table is that AGI is only used as a tiebreaker if the child lives with both parents EQUALLY . Rule number 2 (custody percentage) takes precedence over rule number 3 (AGI).
 

[Lee Borden]

InDenial is correct. If the decree is silent and you're the custodial parent, the one with whom the child lives most of the year, you get the exemption. Period. LiveaLittle's post is confusing because you don't see the table. Go to the web site itself and read the table.

[Jade]

Oh great....

He lived with me for longer than the other parent, yet the other parent has the higher AGI.

So we're left unclear?  And we're gonna argue over it again...huh?

No I'll file first, and then deal with it later.

The IRS does not go by the AGI.  They go by who has the most overnights in the tax year with the child(ren).  If it is equal (which is only possible in a leap year), then they will go down the list.  The IRS doesn't care what the divorce decree says.  They aren't in the business of settling state matters. 

The IRS will side with the CP (the parent with the most overnights in the year)even if it is in the court order that the NCP gets the exemption and the CP claims it anyway, however; the NCP can file a contempt of court motion against the CP and ask to be made whole.  Being made whole would involve the CP paying the NCP the difference between what s/he got back as a refund without the exemption  and what s/he would have gotten back with the exemption.  Plus legal fees.  I don't know if a court will order legal fees over the first contempt, but I'm pretty sure that they would order the difference in the taxes to be paid to the injured party.