BPDFamily.com

Finally, this year after the previous two trying, my ex-uNPD/BPD successfully claimed both children and all of the daycare on her tax return.  We have 50/50 joint legal custody.  So that left me with a $1500 shortcoming on my tax return.  I had sent a letter to IRS in December stating that I felt this would happen, then sent another letter stating that it did happen, with all the supporting court documentation showing how much I pay, 65% of daycare, and what the custody arrangement is.

Unfortunately, I have no court document that states who claims which child.  This can be inferred that we each get one in the support documentation as the calcs are done showing each of us taking one child.  I have read that IRS does not accept court docs to resolve issues anymore and requires parties to submit a signed Form 8332?  Not sure if that is correct.  This is my research, so... .

So, I met with a new attorney, asked what she felt I should do. Her recommendation, since I would have to spend $$$ in legal fees, let it slide for now, and claim both children next year.  In the interim, I assume ex will get a different job in Sept, we will have to modify support, at that time I can have it documented that we each claim 1 child.  The idea of claiming both children next year is fine, but that still doesn't give me the full benefit and payback as daycare will be less this year, and she got the benefit of an additional 65% this year, whereas I will get something like an additional 35% of the daycare expense to write off.  Maybe peanuts in dealing with a BP, but the mountain of my concessions is building and getting more irritating.

This L, I think, told me that due to ex's filing we will both get audited at some point.  Has anyone found this to be true?  I don't worry about me, just want to know if there will be some resolution down the road.  I have heard nothing back from IRS. 

Is what I write correct and looking for other ideas to give myself some satisfaction.

You're correct.If you could have filed first,you could have claimed the kids.The IRS determines custody by the number of overnights you have with the children.If you can get them 51% of the time,you can claim both.With your divorce being just over,your ex just beat you to the punch this year.

We have 50/50 physical custody, I do not have the right to claim both children.  I only want to claim one which is what I had done the previous two years.  The cutoff for overnights is 150, then there are other rules to determine who is the custodial parent for tax purposes.

I want to know if it is likely she'll get audited.  Knowing that I won't spend the money in legal fees to make this correction. 

scraps66,

One year, my H's BPDex claimed a child without permission for 2009. She does not pay support and until she makes over 30k -- then according to the decree my H has all 3 sons. We filed a paper return that year and maybe a form # that I don't remember and were granted the deduction. She ended up owing the IRS money.

The next year we decided to give her the deduction of that child to stop the madness and this time we were prepared--  as an aside- we now have 6 between us  lol

We still claim the daycare expenses on the child that she claims on her form.

I would talk to an accountant. Have you filed then already? I think it's cheap to file an amended tax return to get what you want from child care or deduction. There are IRS rules but your attorney may not know them.

Hope that helps-- I just think waiting for an audit to happen is not a good solution as it may not ever happen.

mamachelle

I filed already.  Since ex had already filed, claimed both children and all of the daycare, I had no choice but to file a return just for me with no deductions.  It just so happens that this year she beat me tot he punch, thogh she has been told, she has tried this every year previosu, claiming everything.  Nothing more than narcissistic entitlement.  "No one can tell me what to to do."  And then do something to prove it.

My real question is, with the letters I have sent to IRS, will she get audited?  My accountant has told me I need a court document that claims who gets which child.  Period.  But, to get that, I will spend probably $800 in legal fees to correct.  So, I'm waiting unitl the next support correction when we will no dobut have to go back to court, and then document the tax situation.  In the menatime I was looking for some confidence by someone who has experienced this in anticipating an IRS audit which would find ex in tax fraud.   

scraps66,

We filed on paper against BPDexW earlier return i.e. we claimed same son she did and the IRS went with our return and then charged ex the money she had gotten illegally with her earlier return. She beat us to the punch but we punched back so to speak.

I don't think an audit is guaranteed at all-- unless you refile an amended return with proper letters/forms while probably simultaneously getting court order. *but then someone else told you the court order didn't matter to IRS right?  If you do this  then the IRS will flag both your and her returns and investigate/audit at least to figure out What the heck is going on.

Remember you file for 2013 in 2014 so if you opt to wait then make sure it is retroactive.

Since you've claimed 1 the past 2 years then the IRS would more likely side with you and go after her IMO. I don't think beating her to the punch next year is the answer either. It seems really stressful.

Also do you make more?

This is from IRS web site:

irs.gov/publications/p504/ar02.html#en_US_2012_publink1000273723

Equal number of nights.   If the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income.


Finally, you can claim the child care deduction even if you do not have the deduction of said child. We do that for our son that we give to bio mom as a deduction since she pays nothing for his care.

mamachelle