Just when I think things are turning in my favor..now the IRS is after me.

[maryjo]

What is the name of your state (only U.S. law)? Florida

Typed all this up and then it said I wasnt logged in! UGH! LOL! Anyway...here is my problem now.

I dont know if any of you remember that about this time last year I was on here asking if it was ok for me to claim my son on my taxes even though it was technically my ex's year. He was behind in his child support and we have a stipulation in our divorce order that he can not claim him if he is behind in his child support. I was advised that it was ok for me to claim him so I did.

He had taken me to court last summer to have his child support lowered and at that time I forgave half his 3000 + arrearages and he then owed 1542.00 which he was ordered to pay back at 25 dollars a month. Because he had that order to pay that back child support he fully believed, and still does, that he was current.

When he found out I had claimed him he was furious, but he knew this BEFORE he filed.

Yesterday I got a letter from the IRS that said "You need to make sure someone is your dependent" and had my son's social security number on it. I called to find out what was going on and explained what happend last year. They told me that he went ahead and claimed him anyway (which I didnt think he could) and now one of us owes the IRS that money. I explained about the court order and she told me not to do anything right now. That we would both be getting that letter and if we dont respond to it something else will happen and then I will have to prove what I had just told her.

I have, right here, copies of the original order where he signed, along with me, the mediator, his lawyer and the judge, right under where it says he can only claim our son if he is current on his child support. I also have copies of the order from last summer showing what he was behind, that he was ordered to pay it back at 25 dollars a month and it is ATTACHED to a copy of the original order of what I just mentioned above. Is this all I will need to prove my case? Is he wrong or am I? Did I defraud the IRS? How much trouble am in? I dont have the money to pay this back. Plus..if he has to pay the IRS back, that also means I wont be seeing his tax refund for this year. The DOR was going after it to pay back the 3,970 dollars he is behind just from THIS year. But we all know the IRS gets their money first.

I am so frustrated and just a little freaked out about this.

 

[mistoffolees]

You have to understand that provisional clauses like that are meaningless to the IRS.

Under IRS rules, the person who has primary custody (> 50% of the time) gets the deduction unless that person signs an 8332 form.

The court can issue any orders it wishes, but as far as the IRS is concerned, the only valid order is if the court orders someone to sign an 8332 - and they do so.

I haven't reviewed your history. Do you have primary physical custody? If so, you simply tell the IRS that you have primary physical custody and did not sign an 8332 form and you should be OK. In that case, you don't do anything now - this is just an 'are you sure' letter and if you're sure, you can ignore it.

If you don't have primary physical custody, it gets more complex. You probably can't simply make the problem go away. What you can do is go back to court for contempt and get the court to order that your ex reimburse you for any expenses, taxes, penalties, interest, etc caused by his taking the deduction in spite of not being current on his support.

In that case, you might have to file an amended return without taking the deduction and then file for contempt to recover the money. But even if that's the case, I wouldn't do anything until you get the letter demanding action - perhaps your ex will back down and file an amended return (that's what happened to me - my decree doesn't address tax issues, so we follow IRS rules. The first year I had more overnights (2 more, I think) than my ex, but she claimed the deduction, as did I. Some time later, I got a letter like yours and I ignored it because I knew mine was right. Nothing else has happened, so I'm assuming that she got the same letter and filed an amended return without claiming our daughter).

 

[CJane]

When the order was issued originally, did you sign an 8332? Have you signed one in subsequent years, or if you signed on at the time the order was issued, was the "all future years" box checked?

If you granted him the right to claim the child in "all future years" by signing an 8332 w/that box checked, whether he's caught up on his child support or not likely will not matter to the IRS.

 

[maryjo]

I have never signed an 8332 and I have primary custody. In fact, he only gets his son about 2 days a month. And most of last year he didnt get him at all until he decided to take me to court to lower his child support. THEN he started getting him.

 

[TinkerBelleLuvr]

It is true that it will take a while. IN.THE.MEAN.TIME, you can gather certain pieces of information. I would gather his school records showing YOUR address. They might look at medical records. You should have a copy of your court order showing that YOU are CP. And then wait.

What I have seen happen is that they ask BOTH parties to prove their claim. Your claim is that you are CP and that you did NOT sign an 8332 giving away your claim.

Now, did you get any part of a tax refund from HIM?

 

[mistoffolees]

I have never signed an 8332 and I have primary custody. In fact, he only gets his son about 2 days a month. And most of last year he didnt get him at all until he decided to take me to court to lower his child support. THEN he started getting him.

You should be OK then. Under IRS rules, as the custodial parent, you can claim the deduction.

It would be up to him to prove that he was entitled to it - which he can't do because he was behind on his payments.

Again, I wouldn't do anything yet, but when the IRS gets around to asking you to back up your claim, send them a copy of your divorce decree stating that you have primary physical custody and some kind of document (perhaps a list of his visitation days actually exercised) showing that you actually had the child most of the time. He'll have to prove that he had the child over 50% of the nights.

 

[LdiJ]

What is the name of your state (only U.S. law)? Florida

Typed all this up and then it said I wasnt logged in! UGH! LOL! Anyway...here is my problem now.

I dont know if any of you remember that about this time last year I was on here asking if it was ok for me to claim my son on my taxes even though it was technically my ex's year. He was behind in his child support and we have a stipulation in our divorce order that he can not claim him if he is behind in his child support. I was advised that it was ok for me to claim him so I did.

He had taken me to court last summer to have his child support lowered and at that time I forgave half his 3000 + arrearages and he then owed 1542.00 which he was ordered to pay back at 25 dollars a month. Because he had that order to pay that back child support he fully believed, and still does, that he was current.

When he found out I had claimed him he was furious, but he knew this BEFORE he filed.

Yesterday I got a letter from the IRS that said "You need to make sure someone is your dependent" and had my son's social security number on it. I called to find out what was going on and explained what happend last year. They told me that he went ahead and claimed him anyway (which I didnt think he could) and now one of us owes the IRS that money. I explained about the court order and she told me not to do anything right now. That we would both be getting that letter and if we dont respond to it something else will happen and then I will have to prove what I had just told her.

I have, right here, copies of the original order where he signed, along with me, the mediator, his lawyer and the judge, right under where it says he can only claim our son if he is current on his child support. I also have copies of the order from last summer showing what he was behind, that he was ordered to pay it back at 25 dollars a month and it is ATTACHED to a copy of the original order of what I just mentioned above. Is this all I will need to prove my case? Is he wrong or am I? Did I defraud the IRS? How much trouble am in? I dont have the money to pay this back. Plus..if he has to pay the IRS back, that also means I wont be seeing his tax refund for this year. The DOR was going after it to pay back the 3,970 dollars he is behind just from THIS year. But we all know the IRS gets their money first.

I am so frustrated and just a little freaked out about this.

Do not be frustrated and do not freak out. The IRS is NOT after you. In fact, you really didn't need to contact the IRS at all. That letter was merely an informational letter, letting you know that the children were double claimed (he was able to do that by filing a paper return) and asking that whoever should not have claimed the children, to amend their return to take them off.

Since you were in the right to claim the children, tax law wise, then you do nothing. If he does not amend his return, then the IRS will eventually ask you to prove that the children are your children and that they live with you. Once you provide that documentation dad will be sol, because you did not give him a signed form 8332, and your court orders are not substitutes for form 8332 because they are conditional.

This is truly nothing to worry about at all. You will need to be prompt in providing them the needed information once they ask for it, but that is all that you will have to do. Come back and ask what information you need to provide after they ask you for it. However, in general this is what you need to provide:

Birth certificate copies to prove they are your children.
School records showing that they live at your address.
Medical records that show that they live at your address.
A copy of your divorce decree showing that his right to claim the children is conditional, highlighting that part.
A statement from you that he was behind on his child support and therefore you did not provide him a form 8332.

Seriously though, this is NOT a big deal. It is absolutely nothing to freak out about.

 

[maryjo]

Now, did you get any part of a tax refund from HIM?

I did not get any of his tax refund. I just filed with the DOR a few months ago and they were going to take this next tax refund.

 

[maryjo]

Do not be frustrated and do not freak out. The IRS is NOT after you. In fact, you really didn't need to contact the IRS at all. That letter was merely an informational letter, letting you know that the children were double claimed (he was able to do that by filing a paper return) and asking that whoever should not have claimed the children, to amend their return to take them off.

Since you were in the right to claim the children, tax law wise, then you do nothing. If he does not amend his return, then the IRS will eventually ask you to prove that the children are your children and that they live with you. Once you provide that documentation dad will be sol, because you did not give him a signed form 8332, and your court orders are not substitutes for form 8332 because they are conditional.

This is truly nothing to worry about at all. You will need to be prompt in providing them the needed information once they ask for it, but that is all that you will have to do. Come back and ask what information you need to provide after they ask you for it. However, in general this is what you need to provide:

Birth certificate copies to prove they are your children.
School records showing that they live at your address.
Medical records that show that they live at your address.
A copy of your divorce decree showing that his right to claim the children is conditional, highlighting that part.
A statement from you that he was behind on his child support and therefore you did not provide him a form 8332.

Seriously though, this is NOT a big deal. It is absolutely nothing to freak out about.

OK. Thank you. I am trying not to worry but I worry about everything. LOL! But I already have the paperwork from the divorce order and what he was behind last year as well as the birth certificate. It wont be hard to get the medical records and school records.

Thank you for your time. You and everyone who responded. While I shouldnt be surprised, I just cant believe he did this AFTER he knew I had already claimed our son.

 

[Cainlord]

I had a similar situation to you, however, my court order document stated I was to claim our child but the CP decided they were not going to send me the 8332 form anymore.

So I got that letter from the IRS, except mine stated how much they were thinking I owed them because of this. I contacted the IRS and they were actually quite helpful, and had me send in the court order doc stating where I would get the deduction. it took AWHILE (like 8 months) for them to come to a decision but it was in my favor based on just the court order.

I have sent in a copy of that order ever since and CP still to this day will not send me the 8332, and honestly after winning with the IRS, I haven't felt the need to go to court about it.

Will this work for you? Don't know and your best bet is the 8332 route. Maybe I got lucky because of past 8332s, But, just wanted to say it can happen that the court order can be used by the IRS as that is what happened to me.

 

[TinkerBelleLuvr]

What happens these days is that you sit in front of the judge and the piece of paper gets signed while both of you are looking at the judge Plus a threat of being in contempt helped.

 

[mistoffolees]

I had a similar situation to you, however, my court order document stated I was to claim our child but the CP decided they were not going to send me the 8332 form anymore.

So I got that letter from the IRS, except mine stated how much they were thinking I owed them because of this. I contacted the IRS and they were actually quite helpful, and had me send in the court order doc stating where I would get the deduction. it took AWHILE (like 8 months) for them to come to a decision but it was in my favor based on just the court order.

I have sent in a copy of that order ever since and CP still to this day will not send me the 8332, and honestly after winning with the IRS, I haven't felt the need to go to court about it.

Will this work for you? Don't know and your best bet is the 8332 route. Maybe I got lucky because of past 8332s, But, just wanted to say it can happen that the court order can be used by the IRS as that is what happened to me.

Your situation is different. It sounds like your decree said simply that you got the deduction. The IRS will sometimes (not always, but sometimes) accept that.

OP has a conditional decree that says that one person gets the deduction IF they do something. The IRS will not get involved with that.

 

[SESmama]

New Rules for Children of Divorced or Separated Parents

Revocation of release of claim to an exemption. For tax years beginning after July 2, 2008 (the 2009 calendar year for most taxpayers), new rules apply to allow the custodial parent to revoke a release of claim to exemption that was previously released to the noncustodial parent on Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or similar statement. The revocation is effective no earlier than the tax year following the year in which the custodial parent provides, or makes reasonable efforts to provide, the noncustodial parent with written notice of the revocation. Therefore, if the custodial parent provides notice of revocation to the noncustodial parent in 2009, the earliest tax year the revocation can be effective is the tax year beginning in 2010. You can use Part III of Form 8332 for this purpose. You must attach a copy of the revocation to your return for each tax year you claim the child as a dependent as a result of the revocation.

Post-1984 and pre-2009 divorce decree or separation agreement. If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following.

The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.
The custodial parent will not claim the child as a dependent for the year.
The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.

The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax return.

The cover page (write the other parent's social security number on this page).
The pages that include all of the information identified in items (1) through (3) above.
The signature page with the other parent's signature and the date of the agreement.
Post-2008 divorce decree or separation agreement. Beginning with 2009 tax returns, the noncustodial parent can no longer attach pages from the decree or agreement instead of Form 8332 if the decree or agreement went into effect after 2008. The noncustodial parent will have to attach Form 8332 or similar statement signed by the custodial parent and whose only purpose is to release a claim to exemption. The noncustodial parent must attach the required information even if it was filed with a return in an earlier year.

New Rules for Children of Divorced or Separated Parents

 

[maryjo]

So, am I in trouble or not?

I havent heard anything from anyone since that first letter. The ex hasnt mentioned it and I have not recevied anything else from the IRS.

I am getting ready to do my taxes. Should I go ahead and do them or wait to see what plays out with this. What if he tries to claim him again??

If the IRS wont take our court order as proof that he cant claim him then technically he has the right to claim him every year. And while I appreciate the post SESmama.....I cant understand what it says at all.

I am sorry it takes me so long to respond. I dont have internet at home. I will be around a computer for a few more hours today though.

Thanks!!!

 

[Perky]

So, am I in trouble or not?

I havent heard anything from anyone since that first letter. The ex hasnt mentioned it and I have not recevied anything else from the IRS.

I am getting ready to do my taxes. Should I go ahead and do them or wait to see what plays out with this. What if he tries to claim him again??

If the IRS wont take our court order as proof that he cant claim him then technically he has the right to claim him every year. And while I appreciate the post SESmama.....I cant understand what it says at all.

I am sorry it takes me so long to respond. I dont have internet at home. I will be around a computer for a few more hours today though.

Thanks!!!

That post just explains what your ex would have to do to claim the exemption. It doesn't really apply to you, don't worry about it.