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Who can claim the child for 2011 taxes?

Colorado Springs, CO |

My step son lived with us for many years. He turned 16 in October. Mid June, he went to visit his mother for the first time in over a decade, and decided he wanted to stay with her. My husband has sole custody, she's been out of the picture for over 10 years. She has a POA we gave her to enroll him in school and provide medical care. Who has the right to claim him on their tax return for 2011?

Also..... our parenting plan states ...... "Only one party may claim a deduction for each child on his/her income tax return. Both parties shall prepare appropriate IRS forms. The dependency exemptions, pursuant to SS 14-10-115(14.5), C.R.S., shall be as follows.... Full name of child.... deduction to be claimed every yeary by Father"

Attorney Answers 5

Posted

Sorry, but I do not believe any of those answers are correct.

The order states that your husband gets the deduction. Until the order is changed, he gets the deduction -- the other factors are irrelevant. This is not a tax analyis, its the subject of the order.

Like many attorneys we will sit down and review your situation with you without charge.

Your best bet is to find a good lawyer who provides advice on this kind of issue on a regular basis and review your specific facts; the lawyer will be able to give you an analysis of the law and your options.

By the way, some attorneys sell "unbundled" or "limited" legal services where you pay for just what you need and can afford. For example, some attorneys will prepare letters for you to sign, legal documents, or sell the paperwork for the court filings; then you can proceed on your own, but knowing that your paperwork is correct and having a road map as to how to proceed. Or who will attend a hearing for a flat fee even if they are not handling the whole case. Neighborhood Law Office is such a firm.

At Neighborhood Law Office we never charge for an initial consultation, and at that meeting we can go through your specific facts and give you options.
Thanks, Jim

Jim Underhill
Neighborhood Law Office
7225 E. Hampden Ave.
Denver, CO 80224
303-302-1000
303-302-1001 fax
jim@NeighborhoodLawOffice.com
www.NeighborhoodLawOffice.com

NOTICE— This answer is based upon a partial understanding of the facts and may not be relied upon as legal advice. It does not create an attorney client relationship between the writer and the attorney. It is provided for general information. You should always consult an attorney about your important legal rights.

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2 comments

James C Underhill Jr.

James C Underhill Jr.

Posted

I truly wish that attorneys would answer questions in the states in which they are licensed and are familiar with the law.

Asker

Posted

Thank you Mr. Underhill. I think since the court order states my husband has the right to claim his child, I'll just go ahead with what we've already done, which is claim him. If the IRS bumps it back and wants to be repaid, we'll pay them back.

Posted

it will be whoever he lived with for over half of the year in 2011. If he stays with her for more than half of they year in 2012, she will be able to claim him, and it will not matter how estranged they are or were. That isn't even a factor.

Christopher Larson
Insight Law
www.insightlawfirm.com

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Asker

Posted

So legal custody has no bearing?

Christopher Michael Larson

Christopher Michael Larson

Posted

Not really. Not unless it specifies who will get the exemption. Even then, it cannot determine who is Head of Household. That is determined by the greater number of days.

Asker

Posted

So if we already filed before knowing her intent, does she have legal recourse?

Christopher Michael Larson

Christopher Michael Larson

Posted

No. But the IRS will make you pay it back, and to avoid penalties and interest, you might as well try to do it before the deadline. But you are not a crook or criminal, and they will not treat you like one. Don't worry about that.

Christopher Michael Larson

Christopher Michael Larson

Posted

You would need to amend your return to fix this, and be prepared to send back any overpayment if the old one is processed before it is received.

Asker

Posted

Also..... our parenting plan states ...... "Only one party may claim a deduction for each child on his/her income tax return. Both parties shall prepare appropriate IRS forms. The dependency exemptions, pursuant to SS 14-10-115(14.5), C.R.S., shall be as follows.... Full name of child.... deduction to be claimed every yeary by Father" Does this have any bearing?

Christopher Michael Larson

Christopher Michael Larson

Posted

Yep. It does. She must sign a Form 8332 for you, or you might have state recourse. However, this would only give you the exemption and Child Tax Credit. Head of Household, the EIC, and Dependent Care Exepenses can ONLY be claimed by the parent that had the child a greater number of days.

Asker

Posted

Okay, so since we filed without knowing she intended to claim him, what is our best way to handle this now?

Christopher Michael Larson

Christopher Michael Larson

Posted

Amend the return before April 15th 2012. Take the exemption, but not the other things. But be warned, the IRS will not compel her to give you the exemption. Only the court that handled your custody matter can do that.

Posted

I agree with Mr. Larsen.

The 10 year gap has nothing to do with 2011 taxes.

This is general legal information, not intended to apply to your specific case. And I may not be licensed to practice in your particular state. Under Federal Law, I am a debt relief agent.

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Posted

The only thing i would add to my fellow lawyers answers is check the custody judgment to see if the tax deduction was allocated under the terms of judgment. Otherwise the greater than 50% rule is the only rule that applies

This information provided is in the nature of general information and in no way creates an attorney client relationship with anyone including the individual who posted the question.

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Posted

It's true that the person with whom the child lives for more than 1/2 the year gets the deduction but either of them could go back to state court for an order equitably arranging the tax break. Better yet, the parties could privately arrange it where they share the tax break. But, that requires cooperation.

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