N/BPDx is threatening to have the IRS audit me. How does that work?

[VIDEO: "What is parental alienation?"]

Email from N/BPDx:

I am requesting the IRS to audit your returns and make a determination that I am entitled to the deduction for S11 as long as I provide the type, kind, and amount of support; as was my understanding from the mediations.

You participated in my decisions to contribute to and withdraw from flexible compensation for day care of my dependant child -- which was to your benefit as well as mine.  Those amounts exceeded the approximately $$$ in expenses last year.  In addition, I paid over $$$ to support your household for the benefit of S11 last year.

I don't follow his logic -- especially based on the wording in the custody order that he refers to (what we hammered out in mediation). But no one is really following his logic these days.

Does anyone know what happens when an ex spouse asks the IRS to audit them?

[livednlearned]

Email from N/BPDx:

I am requesting the IRS to audit your returns and make a determination that I am entitled to the deduction for S11 as long as I provide the type, kind, and amount of support; as was my understanding from the mediations.

You participated in my decisions to contribute to and withdraw from flexible compensation for day care of my dependant child -- which was to your benefit as well as mine.  Those amounts exceeded the approximately $$$ in expenses last year.  In addition, I paid over $$$ to support your household for the benefit of S11 last year.

I don't follow his logic -- especially based on the wording in the custody order that he refers to (what we hammered out in mediation). But no one is really following his logic these days.

Does anyone know what happens when an ex spouse asks the IRS to audit them?

[OTH]

He is trying to claim the child as his dependent. He is wrong though. The custodial parent is the only one who can claim the child. I think maybe if you just divorced and the child lived with him for the majority of the year he can claim the child but I think you would have to sign the form stating that he can since you are the custodial parent.

Page 13... .  

irs.gov/pub/irs-pdf/p501.pdf

[livednlearned]

He is trying to claim the child as his dependent. He is wrong though. The custodial parent is the only one who can claim the child. I think maybe if you just divorced and the child lived with him for the majority of the year he can claim the child but I think you would have to sign the form stating that he can since you are the custodial parent.

Page 13... .  

irs.gov/pub/irs-pdf/p501.pdf

Thanks OTH.

It's in my custody order, in plain print, that I am the custodial parent who can claim the minor child as a dependent for tax purposes. So I'm not sure what he's thinking, other than to rattle my cage? He's an attorney, so I always think he knows what he's talking about. Since last summer, tho, the schedule changed to S11 living with me 96% of the time. We did a modified custody order, which stated changes to the visitation schedule, but kept all other provisions in the order the same.

Scratches head.

[GaGrl]

As I understand it, if one parent has claimed a child as a dependent for tax purposes, then the other parent subsequently claims the child, the second parent will get a notification from the IRS (form letter) requesting proof that the parent is entitled to claim the child.

Perhaps your ex got the form letter and can't show a court order justifying the deduction?

Or perhaps he's just being a jerk.

[charred]

You shouldn't have anything to worry about with an audit, they just check how you figure things... . its even possible to get a refund as a result of an audit, as they occasionally find you paid too much. The comments about the deduction going to the custodial parent are true... . so if you claimed it, you were in the right. Sounds like more manipulations/bullying from your N/BPDx.

If your two returns are still somewhat tied together (which is what he makes it sound like in trying to get the deduction)... . he probably will get his return examined as well as a result... .   funny, fitting, but could trigger some N issues in him.

[livednlearned]

As I understand it, if one parent has claimed a child as a dependent for tax purposes, then the other parent subsequently claims the child, the second parent will get a notification from the IRS (form letter) requesting proof that the parent is entitled to claim the child.

Perhaps your ex got the form letter and can't show a court order justifying the deduction?

Or perhaps he's just being a jerk.

That's what happened to me last year. I went to claim S11 as dependent, and the IRS said he had already been claimed. So I sent in a form with the divorce decree which stated I was custodial parent and was the parent who could claim S11, and that took care of that. This year, to avoid encountering the same issue, I filed early. I'm guessing N/BPDx waited until the last minute to file, and then encountered the same problem I did. And now he is mad and trying, like you said Gagrl, to show documentation that he can claim S11.

I looked at the criteria that OTH shared on page 13, and it's clear as day that I am the custodial parent who can claim S11.

I'm not too worried that he will get what he's trying to get, more worried about dealing with the hassle.    Anyone here able to relate  

[livednlearned]

You shouldn't have anything to worry about with an audit, they just check how you figure things... . its even possible to get a refund as a result of an audit, as they occasionally find you paid too much. The comments about the deduction going to the custodial parent are true... . so if you claimed it, you were in the right. Sounds like more manipulations/bullying from your N/BPDx.

If your two returns are still somewhat tied together (which is what he makes it sound like in trying to get the deduction)... . he probably will get his return examined as well as a result... .   funny, fitting, but could trigger some N issues in him.

One thing that occurred to me -- I took a 5-hr/week position (grant funded) to help pay legal bills. And I believe that is something that needs to be disclosed because it shows a change in my income, which affects alimony. It is a negligible amount, but it's the kind of thing N/BPDx would use to show that I am not honest. My L said to take the job because it is temporary, and not to worry about. But if I'm audited, then I think I should worry about it?

[charred]

Audits are of your tax filings... . which are usually last years not this years. If you made money from it you should have had a W2 and the IRS would already know about it anyway. They (IRS) are easier to work with than you might think, I have been audited, it isn't a big deal unless you have done something big wrong... . at worst you might owe some money, and they will give you credit, and take payments, if its a lot they will often agree to taking less.

The bigger issue from what you have described is your N/BPDx attempting to take an undeserved deduction... . and paint you black in the process. Embrace it... . be nice to the guys, and keep in mind that someone NPD/BPD... . is far more likely to fare badly in an audit, as they often have something to hide.

[DreamGirl]

I think he's cage rattling.

He also can request a "review" but not necessarily an audit. (I wouldn't think)

My husband's ex-wife filed an innocent spouse form (Form 8857) when she filed taxes the first year during their divorce when they reduced her return by the amount the two of them owed from the previous year.

It was denied.

I might talk to an accountant - they'd be far more knowledgable in tax laws when it comes to this. I wouldn't think it would cost you much.

From my limited understanding, he is in the wrong. Especially if your court order declares that you are the one who claims him. Also in most state calculations, daycare along with the tax credit are taken into account when figuring child support. So his argument is valid (that daycare is tax deductible)... .   but it's already taken into account in terms of child support.

Side note: If in negotiations you decide to swap the child dependent claim every other year? Make sure you have included a provision that says that the non-custodial parent can only claim the child if the child support is current.

-DreamGirl

[scraps66]

I'm beginning to clean this same thing up with my case.  50/50 joint legal custoyd and my ex claimed both children and all of the day care.  My tax guy is telling me i need everything in a court order cuzz they will favor the mother in most cases.  I have not heard back from the IRS yet, but planning on going back to court over this very simple issue.  I do not think anyone can request or demand IRS do an audit either.  blowing smoke.

[Waddams]

I go to a tax pro to do my taxes each year for the specific reason that with 50/50 custody, even with our divorce orders specifying who gets to claim S8, things can get messed up.  Costs me $150-200 for the help, but well worth it to keep me out of trouble.

Last year ubipolar-NPDxW claimed the daycare expenses.  Problem is I paid for it all with a pre-tax dependent care account.  She filed first, and it went through fine on e-file.  I went to file and it got kicked back because then the daycare expenses were basically being double dipped.  I had to mail them in and the tax pro put together a package to attach that showed what had happened.  He said to expect a call from the IRS, which could even be a year or two later, but it would get flagged eventually. Then just go to see them with the filing package copies he gave me and show them.  S8's mom will then have to fork over more money plus late penalties and interest.

A good tax pro, if you can afford it, is worth their weight in gold when you're trying to navigate taxes and divorce/split custody issues.

[1stand10]

Really interested in this turn out.  Same thing happened to me this year. 

The court calculated support with me claiming both children for 2012, both children lived with me more than half the year and uBPDex claimed D10 on her taxes.  The court order stated that I will claim both children for 2012.  When I efiled, my return was rejected.  I called ex and emailed her the documents and asked her to amend her return and she refused saying she needed the money. 

[Free One]

I think he is being questioned and projecting it on to you.

If the CO states you can claim the child as a dependent, then do so.

The other issue is the Earned Income Credit, but that is based on if the child lived with you for more than half the year or not.

Taxes and custody, child support or alimony are two separate issues. The IRS can't find fault with you about the CO; it's not their jurisdiction. As long as you report all of your income and filed your taxes accurately to the best of your knowledge, I wouldn't worry. The IRS sounds scary, but in reality, even you've been as honest and accurate as you can be, an audit is inconvenient, but not devastating.

[Waddams]

@1stand10 - my tax guy basically told me in that circumstance mail in your return claiming the child.  it will get flagged and you and your ex- will end up explaining it to the IRS.  

the IRS doesn't really care what court orders say.  they have rules as to who can do what that are stipulated in federal law.  those rules are law, you can't write an agreement that is enforceable that violates the law.  

so if you have the kids more than 1/2 the time, you get the deductions per IRS guidelines.  you can file, mail in your paperwork, and get your return.  then at some point in the future, you'll have to go to the IRS with your ex- and you'll have to document that you are entitled to the claims on the kids.  having your court orders in hand will also help.  then the IRS and your ex- will be left working things out between them and you're done.

at least this is how my tax guy explained it all to me when i had a similar issue once.  so don't let her stop you from doing what is best for you, or what you are entitled to by law and/or court order.  just do it.  let her deal with the consequences that will come eventually.

[1stand10]

Thanks Waddams!  I hope that helps others too because we know they won't follow the law or a court order.   

[livednlearned]

Thanks Waddams!  I hope that helps others too because we know they won't follow the law or a court order.   

When I could not e-file last year (because N/BPDx had already claimed S11), it tipped me off that the person who files first has the least amount of hassle. It was a hassle to gather up the paperwork to sort it out, and I still received the return I thought was coming my way, so I guess the IRS figured it out.

So this year, as soon as I had everything, I filed. I guess N/BPDx didn't like having his e-file rejected, and since it is spelled out clear in the CO that I can claim S11, he probably released the flying monkeys. Everyone here, plus my L has said don't worry, so I'm not going to. One day at a time... .  

[DreamGirl]

Everyone here, plus my L has said don't worry, so I'm not going to. One day at a time... .  

It's the use of the a-word.

"Audit" makes anyone worry. 

[ForeverDad]

I got the impression the IRS wants Form 8332 used as much as possible.  Even so, my court has never used them in my case.

Among the cases cited in this link I saw a big surprise, that tax court doesn't agree to conditional terms of many divorces, that the parent paying child support can claim the tax deductions IF child support is current.  Tax court doesn't like conditional terms, if one doesn't use Form 8332 it requires paperwork with unconditional release of similar substance to that form.

www.forbes.com/sites/peterjreilly/2013/01/02/form-8332-dont-let-the-kids-live-in-another-home-without-it/

The tax court expressed some sympathy but refused to budge... .  

Mr. A’s case is quite sympathetic: He was up to date on his child support; and under the State court order, Ms. D was obliged to sign Form 8332 and release the exemption deduction to him. We are obligated, however, to follow the statute as written, whether the resulting disadvantage is (as here) suffered by a noncustodial parent who bore the burden of child support but did not receive an executed Form 8332, or whether the disadvantage is suffered by a custodial parent who executed a Form 8332 but then bore an undue and unintended burden of child support.

It would seem that the moral would be to make sure that you get the Form 8332 for the non-custodial parent, but, of course then, we have the case of Ms. G which would argue for the custodial parent to be cautious about handing it out.  My own view is that non-custodial parents should try to get some other concession in exchange for passing on the dependency deduction.

[OTH]

You are the custodial parent. You are in a good place 

Thanks Waddams!  I hope that helps others too because we know they won't follow the law or a court order.   

When I could not e-file last year (because N/BPDx had already claimed S11), it tipped me off that the person who files first has the least amount of hassle. It was a hassle to gather up the paperwork to sort it out, and I still received the return I thought was coming my way, so I guess the IRS figured it out.

So this year, as soon as I had everything, I filed. I guess N/BPDx didn't like having his e-file rejected, and since it is spelled out clear in the CO that I can claim S11, he probably released the flying monkeys. Everyone here, plus my L has said don't worry, so I'm not going to. One day at a time... .  

[livednlearned]

You are the custodial parent. You are in a good place 

Thanks! I read through what FD sent, and it made me nervous that N/BPDx could somehow drag me into IRS court down the line, claiming the tax laws superseded divorce decrees. But doesn't look like the IRS wants to be in the business of untangling family law problems. And no one has ever mentioned Form 8332, including N/BPDx's own lawyer self.

I suspect this isn't the last I'll hear of it, but I'm putting it in the bucket with all the other nutty threats that I don't need to worry too much about.

[scraps66]

One other thing that can play a factor is the school and home address used for the kids.  In my case, my kids go to the school based on MY address.  I think FD did this? this means I am the "custodial or residential" parent for tax purposes as well.  I think, have to talk to my tax guy, since the school taxes are consumed under property taxes, that I could rationalize getting all of the tax credits for BOTH children becasue school uses my address.  I don't have this in my court crap, but plan on making a stipulation.  I have also had this little nuance trivialzied by a few attorney's as not meaning anything and that it can't be done.  I think I know differently.  One of these trivializing attorney's, allegedly respected and having worked in my courthouse for years, said to me, "well, can't you just file first."  In the case of this year, NO. 

The school thing is also important in that you can require school call you, first, instead of the other parent.  this has been an issue for me in several instances during my parenting time.

Again, just if you have this issue with taxes, it makes sense to document it in case.