It was my year to claim dependant and ex claimed 1st

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It was my year to claim dependant and ex claimed 1st

Unread postby bionic » Sun Mar 05, 2017 5:04 pm

Have 3 kids 50/50. One was emancipated in Aug 2016 and is now a full time college student.

There is a specific section in our court order back from before 2009 spelling out who takes the extra dependant on even and odd years. We have followed that without issue for many years. So the pattern is documented. There is no defined custodial parent and thus a Form 8332 has never been filed.

This year with 18 yr old off at college ex decides to take her as a dependant saying she supported her over 6 months. The order doesn't say anything about what is to happen after age 18. It doesn't say, mom is sending more care packages to daughter in college and thus can prove out the support for greater than 6 months test.

Ex has already filed electronically. I have requested that she amend her return. She is refusing and believes she is entitled to take this dependant.

I plan to issue a paper filing and will claim the same dependants. It will make it a mess with the IRS. Or will it?

I'm at a loss. I thought I had some protection with the court order and now feel bullied. How have you handled this in the past?
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Re: It was my year to claim dependant and ex claimed 1st

Unread postby Tom Kirkpatrick » Sun Mar 05, 2017 7:27 pm

bionic wrote:There is no defined custodial parent and thus a Form 8332 has never been filed.
NJ should've signed Form 8332 before divorce was finalized.

Plan-B: Which one of you had the most parenting time in 2016??.....at least 183 days??

Tom
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Re: It was my year to claim dependant and ex claimed 1st

Unread postby bionic » Sun Mar 05, 2017 8:12 pm

Hi Tom,

We don't use the Form 8332 because there is no defined custodial parent.

What I'm up against is the NJ trying to pull a "got ya" with having more parenting time. The support/parenting time test of the IRS does not apply because there is a court order for who is to claim. She could win the IRS battle but lose the local divorce war. So I'm thinking I have the easiest contempt ever.
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Re: It was my year to claim dependant and ex claimed 1st

Unread postby grandetaco » Sun Mar 05, 2017 8:59 pm

Does the order say it ends at 18?

1. You file and take the 18 year old. You will have an audit, most likely a request for additional info. Then you could produce the court order for the IRS.
You have to ask yourself, what does she have as proof for having more time that you or as the IRS wants to see > 50% time,
In lieu of that, how about telling the IRS that the court order of even/odd years apply till the children are not dependents on anyone's taxes.

2. Let this be a lesson, as soon as you get your w2 or 1099, file an extension and take children as dependents, then when you are ready file your taxes.
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Re: It was my year to claim dependant and ex claimed 1st

Unread postby bionic » Sun Mar 05, 2017 9:11 pm

As I dig into this the following applies -

This is from form 8332 and is the exception for having to file form 8332. (My order is dated 2006)

Post-1984 and pre-2009 decree or
agreement. If the divorce decree or
separation agreement went into effect
after 1984 and before 2009, the
noncustodial parent can attach certain
pages from the decree or agreement
instead of Form 8332

So as this reads I can include relevant pages form the order. Not sure what will happen - I guess it would be audit time if she did not amend her return.

From the 2006 order:
XIV. TAX EXEMPTIONS
in 2006 and all even-numbered
years thereafter, Father shall be entitled to claim
two (2) of the parties' minor children as and for a tax exemption
and Mother shall claim
one (1) child as and for a tax exemption. in 2007 and
all odd-numbered years
thereafter.
Mother shall be entitled to claim two (2) of the parties' minor children as and for a tax
exemption and Father shall claim one (1) child as and for a tax exemption.
When there
are only two children eligible to be claimed,
the parties shall each be entitled to claim one
(l) child as and for a tax exemption.
when there is only one child eligible to be claimed,
the parties shall alternate
claiming the child as a tax exemption,
with Mother being
entitled to claim the tax exemption in odd-numbered
years and Father being entitled to
claim the exemption
in even-numbered
years. Both parties agree to execute all documents
necessary to effectuate
the taking of these exemptions.
In the event that either parent is
completely phased out from taking the exemption(s)
on their tax returns (federal, state
and local), the other parent shall be entitled to take the exemption(s)
and the parents shall
equally share the benefit of any claimed exemption
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Re: It was my year to claim dependant and ex claimed 1st

Unread postby hoosier_dad » Mon Mar 06, 2017 8:41 am

The decree language isn't specific on who claims which of the three children. How were the other 2 handled in your ex's IRS filing?
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Re: It was my year to claim dependant and ex claimed 1st

Unread postby RockyCali » Wed Mar 08, 2017 1:28 am

I didn't see that you answered which parent had the child for 183 or more overnights.

Sounds like she went afoul of the local/state decree.
Also sounds like the IRS received her return.

The superior court isn't a tax agency.
The IRS isn't a family court mediator.

How much is this all worth? I'm talking about real dollars as well as stress and time. How much would it cost to fix?

I say let it go -- and file as early as legally possible in future years.
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Re: It was my year to claim dependant and ex claimed 1st

Unread postby spritom » Tue Mar 21, 2017 6:21 pm

Just looking at this paper-wise I'm-a-readin':
* Minor children are spelled out in the decree
* The children's 18+ aren't part of the decree
* Any tax filing issues aren't party of family court

Option 1 - Go speedy next year
If you're using TurboTax, you can file before the opening date and TurboTax (Intuit) will cache your return and send it in as soon as the IRS servers open the connection in January 2018 for TY2017.

Some people even file with estimated numbers and simply amend their tax return later when they get the paperwork...all to be 1st!

Option 2 - IRS route
* paper file for TY2016
* claim 18yr old
* IRS will tag it and send you back a communication on it
* then you send in the pre-2009 version of claiming the kids
The problem with this is that your decree doesn't appear (to me) to cover 18+, so the IRS might not agree. But this option hasn't appeared to be a huge mess for people.
Either:
* IRS doesn't agree, and they'll refigure your taxes without the 18-year old...meaning you'll pay the same amount as Option 1 this year
* IRS will agree and they'll send a letter to the Ex refiguring her taxes with a less-happy $$ number for her.

Option 3 - sue the ex in small claims court
submit your proof as exhibits to introduce as evidence
dance before the judge (and hopefully do better than Chris Kattan did on DWTS :) )
This option seems to make the least sense dollars-wise

Option 4 - bargain
Cut a deal with Ex that for the "off years" (when not claiming the younger kids), then the parents would claim the older child (or whatever deal you think might work)
As part of the deal, sign the IRS form
Yeah...for my NJ-Ex....even if I wrapped up $1000 with a big bow on it, she'd balk at it and fight if she thought I was getting 38 cents out of the deal.
This is why a lot of people go for Option 1 and race to get that January return in
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Short-short version of what to do

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Re: It was my year to claim dependant and ex claimed 1st

Unread postby AtticusFinch » Wed Mar 22, 2017 8:51 am

@spritom. I have this situation coming up in January, 2018 myself. I didn't know about Option 1, it's a lifesaver.

That's why I love this forum.
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Re: It was my year to claim dependant and ex claimed 1st

Unread postby Karl j » Wed Mar 22, 2017 10:33 pm

There is a defined custodial parent. IRC 152 defines it. Whomever the child spent more overnights with during the year. If overnights are equal, it's whomever has the highest AGI. Your state divorce decree is irrelevant for federal tax law. You can bring her to civil court and sue for damages, but it'll probably cost more than what you'll get.
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