Filing "head of household" first

[SHRED]

My daughter's ex and father of their child is trying to convince her that he needs to claim the child.
He has zero right to do so.

Is it true that the first one to file with the IRS gets it?

I am trying to get her's done today.

[lizziegrace]

1. What does the divorce decree say?

Ours was spelled out in the divorce papers.

[SHRED]

3. never married

[madinmaryland]

2. A couple of questions..

1.) Who has physical custody of the child?

2.) Is the father paying more than 50% of the support of the child?

[SHRED]

5. answers

1. She does

2. No


He is a real selfish prick who actually committed fraud on student loans by claiming he was a single father with fulltime custody.
Now he needs to claim the child to stay out of trouble.

[madinmaryland]

9. Based on your answers, she would be entitled to the deduction.

In the case of an audit, if she has the back-up documentation, she should be able to take the deduction. The ex or whatever he is, should not be eligible for the deduction.

[SoxFan]

16. Based on this, she gets it

It would probably help if you got your local family court/chancery court to issue an order to that effect.

[lizziegrace]

17. I assume there's no custody agreement? n/t

[SoxFan]

18. That's my assumption

That's always a bad state of affairs, but it's common with out-of-wedlock pregnancies.

[SHRED]

19. true and it is terrible

Lots of manipulation and games.

[lizziegrace]

20. Depending on the age of the child

spending the money now to get an agreement on file with the court will keep this from coming up year after year.

[SHRED]

21. 6 years old

[MajorChode]

4. Yes and no

The problem happens when the 2nd person files electronically. The IRS will reject the filing based on a previously claimed dependent's SSN. You can mail the return into the IRS, but they will likely question why two people are claiming the same dependent and one or both may be audited.

[SHRED]

6. he is waiting on a W2

We have hers and are ready to file today hopefully via TurboTax.

[MajorChode]

7. You really should work it out as far as who gets the deduction

If both claim the deduction and you both get audited, there's going to be some hard questions that will be asked. Then again, you may never get audited and they simply grant both the deduction.

Personally I would never risk an audit based on just a few hundred dollar deduction. Even if you have all your ducks in a row they are not fun.

[SHRED]

8. Here is the deal

He is a real selfish prick who actually committed fraud on student loans by claiming he was a single father with full time custody.
When in fact my daughter was working and had well over 50% of custody.
Now he needs to claim the child to stay out of trouble.

So I guess she could file first and warn him not to or else there is a good chance of an audit?
His legal standing is terrible and he may not want to push it.

I have told her, and she now realizes, she needs to take him to court and get this straightened out. She never has filed for custody in court. She has played games with him and his mother (a tax accountant) for a few years now regarding child support.

---

[MajorChode]

11. As far as an audit goes, it doesn't really matter who files first

The only time it matters is if the 2nd person files electronically because the IRS is not going to electronically accept a SSN that has already been filed against. However you can just mail the return in and it will be accepted at least initially.

The IRS is definitely going to know that something is rotten in Denmark on both returns. If they can readily tell which one is in error, they may just deny the deduction and withhold part of the refund or send the person a bill for the difference. It sounds like in this case it will not be immediately apparent who should get the deduction. Whether they choose to act on that information is up to them. They may write it off as not worth pursuing or they may audit either or both returns. It's a crap shoot.

[SHRED]

12. how can she prove over 51%

School records?

The child goes to school near her Mom's and the father is miles away.

[MajorChode]

15. Court decrees, witness testimony, school records

There are lots of ways. The question is will they go to that effort or force either party to produce such records. Maybe they will, maybe they won't.

[SCantiGOP]

10. my ex tried this

She claimed my daughter on her return, even though she only has supervised visits at my discretion. When my return was questioned because someone else had already claimed her, I called her and told her that I was going to the IRS with documentation in two weeks and demand that she be prosecuted. When I contacted the IRS I was told she had submitted a revised return without the dependent. It will cause you some trouble and delay any refund she is due, but he'll end up with at least a penalty.

[MajorChode]

13. It was a bluff that apparently worked

You can demand prosecution all you want but the discretion rests with the IRS. Put yourself in their shoes. Is it really worth it for them to prosecute someone for fraud when they are going to spend 10-100 times more than they would ever hope to recover in settlement which would be a long shot at best? Really the best you could hope for is for them to pursue it administratively, but even then they may just elect to write it off.

[lizziegrace]

14. There's a difference between claiming the child as a dependant

and claiming head of household.

I've always claimed head of household even during those years my ex was claiming her as a dependent per our divorce decree.

on edit: She lived with me and I provided more than 50% of her support.

[PRETZEL]

22. I vaguely remember a form that had to accompany my return

when my ex and I split who was taking the deduction. She had to sign it and I had to send it in and vice versa.