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My husbands ex wants to claim their daughter on her taxes to avoid having to pay taxes this year. Isn't this tax fraud?

Sugar Grove, IL |

It is my husbands year to claim their daughter according to their divorce decree. If she claims their daughter she would get a return of over $3000 and give us $2000. If she doesn't claim her she will have to pay $500. This doesn't seem right to me.

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Attorney answers 5

Posted

Do they have an appropriate 8332 on file? This form is often necessary in order to create or change the ability for the noncustodial parent (whichever parent that is) to claim a child on a tax return. http://www.irs.gov/pub/irs-pdf/f8332.pdf

THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. The answer to question does not create an attorney-client relationship or otherwise require further consultation. Mrs. Cook is licensed to practice law throughout the state of California with offices in San Diego County. She is authorized to handle IRS matters throughout the United States, and is also licensed to practice before the United States Tax Court. IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, please be advised that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used or relied upon, and cannot be used or relied upon, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Asker

Posted

I am not certain, I printed one out. I have to sign one for my girls father every year in order for him to claim one of them on his taxes.

Bruce Givner

Bruce Givner

Posted

Amanda is correct.

Posted

Most likely not. Even if she's not entitled to claim the child as a dependent, if she does so the IRS will simply deny the claim and assess additional tax, plus penalties and interest against her. Tax fraud requires some act intended to disguise the illegal behavior or mislead the IRS, and simply claiming a dependent deduction you're not entitled to is not really that sort of conduct.

My answer does not constitute legal advice and may not be relied upon by anyone for any purpose and does not constitute an attorney/client relationship or an offer to form such a relationship. This disclaimer is intended to be fully compliant with the requirements of Treasury Department Circular 230 and the terms thereof are fully incorporated by reference. If you wish to consult with me please contact me at dana@nytaxcounsel or visit my website at www.nytaxcounsel.com

Bruce Givner

Bruce Givner

Posted

Dana is always right.

Posted

No this is not tax fraud. This is sound tax planning. The parents may agree in writing who may claim the exemption for a child. Accordingly, it is in the best interest of a family to evaluate where to assign the exemption to maximize family finances. Unless the value of the deduction to you is worth more than the $2000.00 the mother is willing to pay you may be inclined to take her up on the offer.

You have asked us to state an opinion based upon stated facts. You have not provided us with any documents, pictures, witness statements or other admissible evidence. The opinions stated are based upon general principles of law unless otherwise stated, which may or may not be applicable in your jurisdiction. Controlling law is also subject to change or reversal at any time. Any such changes may be retroactive and could significantly modify the statements and opinions expressed herein. Similarly, any change in the facts and assumptions upon which this opinion is based could modify the conclusions. We opine only as to matters expressly set forth, no opinions should be inferred as to other matters or to treatment of matters not specifically addressed. This opinion represents our best judgment as to the probable outcome of the issues discussed and is not binding on the courts or upon your adversaries. We can give no assurance that an adversary would not challenge our conclusions and prevail in the courts in a manner to cause adverse consequences. With respect to some of the matters discussed in the opinion, existing legal precedent may provide very little legal guidance. Although the opinions and views expressed are based on our best interpretations of existing law and what we believe a court would probably conclude if presented with the applicable issues, we can give no assurance that our interpretations would be followed if the issues became the subject of judicial or administrative proceedings. Realization of certain benefits described is subject to the risk that a tenant may challenge the treatment and that a court may sustain the challenge. Because you may bear the burden of proof required to establish a fact, the opinions expressed assume the you will undertake the effort and expense to present fully the case in support of any matter that you have asserted and an opponent might challenge. None of the advice provided here may be used to avoid tax liability, interest or penalties. If you want that level of assurance you will need to allow us to perform the full opportunity to explore the facts and law applicable to your specific circumstances. I provide answers here to allow people to see the style of communication and type of analysis applied to factual statements.

Joseph Henry Sparacino

Joseph Henry Sparacino

Posted

Mr. Walker, I belive you may not be as aware of how we allot a tax exemption for a child in Illinois. The mother can be held accountable for the loss to the father and be ordered to pay attorney's fees he incurs to enforce the Order.

Bruce Givner

Bruce Givner

Posted

Clayton is correct.

Joseph Henry Sparacino

Joseph Henry Sparacino

Posted

You seem over focused on the tax aspect as opposed to a family court enforcement issue.

Posted

This is legal. The husband is foregoing the tax deduction and allowing his wife to use it. As long as the child is living in their home for the required period of time during the year, there is nothing wrong with this.

Bruce Givner

Bruce Givner

Posted

Mansoor is correct.

Posted

If the Court Order says this year is your husband's year to claim his daughter and her mother does to help the new husband; that is Contempt of Court. She faces not only having to amend her joint return with her new husband, owing your husband what he should have gotten from claiming his daughter,and paying your husband's attorney's fees for the cost of his enforcing the Order. As I am often in Court have your husband call my assistant Dan London at 312-807-3990 to set up a private telephone consultation. At the consultation we can discuss the confidential details we need to craft a strategic plan. These details should not be broadcast over the Internet.

This is a general answer and does not address the specifics of your individual case. To give the specific answer you need our firm needs you to come in for a consultation.

Bruce Givner

Bruce Givner

Posted

Joseph is correct.

Joseph Henry Sparacino

Joseph Henry Sparacino

Posted

I now realize you examined both answers and from our individual viewpoints we are both correct.

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