I know there are variations of this question out there, but I've yet to find anything fitting my situation. The IRS.gov site seems to answer it, but we are getting conflicting information from some of the tax preparation businesses.

My fiancé and I have lived together for nearly 3 years. My children are 4 1/2 yrs old and he is the only father they have ever known. He is also our primary source of support as I have an auto immune disease and have been duking it out with Social Security to have a disability claim approved. He is a roofer and routinely works about 9 months out of the year, then is off in the winter and draws on his unemployment insurance.

We were told this year that he could not claim the kids due to their not being his biologically. Their bio father is not in the picture, let alone supporting any them and I don't work; he is head of household. What gives?

Nothing gives especially the government. He has no rights to YOUR child. He isn't legally obligated to YOUR child in any way. So he can't claim the child unless you get married and file joint. Its too late now for last years taxes but never too late for this years.

You've been given bad information. Your BF can file as single and claim as dependents you and/or your children as long as (a) the person lived in his house all year, (b) he provided more than half his/her support, and (c) the person earned less than $3,650 for the year. From your description this sounds like he can claim the children, and perhaps you as well. But note - your BF must file as single, NOT as Head of Household. If he does claim the children, you can not claim them as dependents on your own return.

Since the new rules came in how does the person meet all the guidelines of being a qualified child to someone that has no legal ties to the child ?

I think the government uses "qualifying relative" just to confuse us. A qualifying relative can be anyone that meets the relationship test or the "member of a household test". To meet the household test they must live in the household all year as EB pointed out. An example of a similar scenario can be found in Pub 17, Chapter 3. Therefore the BF should be able to claim the dependents based on the facts given.

Thank you, Ebaines. This jibes with what I'm seeing on the IRS web site as well as what we were told last year when we filed except last year he filed as head of household and everything went smoothly. I have no idea what the difference is, but I'm going to assume that any reputable tax preparation company will be able to tell us the difference and what he needs to do. It just sounded completely off to me for them to tell him he isn't allowed to claim them based on biology. And this was H&R Block! Furthermore, they prepared his taxes last year and everything was just fine! He said that he got the feeling they were thinking he was trying to pull some kind of scam since we have multiples (quadruplets) and they just seemed like they thought something was fishy. He went in with birth certificates and social security cards for all of them, so I'm really displeased that they automatically gave him this information in error. He easily provides far more than half of their support and has been doing so since they were 15 months old. He may have no "legal" right to them, but he should certainly be able to claim them as dependants since he has assumed the role of provider.

Thanks again for your feedback. It's appreciated.

Last year the rules were different. He needs to be careful with this. He doesn't meet the IRS criteria for qualifying child.

Ref:

http://www.irs.gov/pub/irs-pdf/p501.pdf

See qualifying child.. 6 tests and not all are being passed.

See rules 1 and 6

Califdad- I see that. BUT, they could be claimed under the rules for Qualifying Relative. That's actually what fits our situation.

How do they fit as relative if they aren't related ? From what I see, It still doesn't hold because they are disqualified from it in rule #2. Relationship must not violate local law. And in this case there is no legal venue for the boyfriend. Also there may be a taxpayer that is entitled to the deduction and that's the bio dad if the mother is relinquishing the deduction by not filing and filing on his as a dependent.

Are you actually reading the criteria to BE a relative?

THEY are giving us the definition so it's not something that I'm warping to fit my own. There are only 4 criteria, and we meet them all including the 2nd which you are questioning. According to the guidelines outlined in the rule, we fit.

Under qualifying test question 2, you may be reading it as all a, AND b, but it's a OR b. We are definitely b and meet the other three criteria in that section as well.

It reads: or (b) must live with you all year as a member of your household

That is how we qualify and our relationship certainly isn't breaking any laws.

It spells it out quite succinctly; their terms, not mine. I have a friend in Virginia who has done taxes as a sideline to her real estate business for the past 8 yrs and she is telling me it fits and clients do it all the time. Also that the relationship is seldom questioned unless there is a reason for audit; i.e... a fairly large earner/tax bracket. This is not us.


If we are able to fall in under this definition, I see nothing wrong with it. Heaven knows, he's earned it.

The violation of local law thing.. what exactly are you thinking that means Califdad? While I can't be certain, from what I'm gathering, it's cases of something illegal such as a romantic tie to a minor or blood relative. Not sure what you think it means but there is certainly nothing about our relationship which violates local law.

Yes, your finance can claim the children as qualifying relative if requirements are met.
Even if your finance is eligible to claim the child, this does not make you head of household and you do not get EIC as the child is not your fiance's qualifying child.

The violation of local law thing..what exactly are you thinking that means Califdad? While I can't be certain, from what I'm gathering, it's cases of something illegal such as a romantic tie to a minor or blood relative. Not sure what you think it means but there is certainly nothing about our relationship which violates local law.

Here is where it got into a grey area. If the mother isn't claiming the child on a tax return.. then shouldn't it fall onto the bio dad to be able to deduct for the child ? The reason being it still meets the IRS rules for being a Qualified child deduction. If that is the case then how is it the boyfriend can use the child as a relative deduction ?

That's where Im having trouble understanding.


What would the IRS do should the bio father and the boyfriend both deduct the child.. That is the way Im looking at it. I believe the deduction would go to the bio dad and the boyfriend would have explaining to do.

Here is where it got into a grey area. If the mother isnt claiming the child on a tax return .. then shouldnt it fall onto the bio dad to be able to deduct for the child ? The reason being it still meets the IRS rules for being a Qualified child deduction. If that is the case then how is it the boyfriend can use the child as a relative deduction ?

Thats where Im having trouble understanding.


What would the IRS do should the bio father and the boyfriend both deduct the child.. That is the way Im looking at it. I believe the deduction would go to the bio dad and the boyfriend would have explaining to do.


I'm not really sure why it's a grey area; their bio father does not meet any of the guidelines. They don't live with him at all, ever. He does not support them at all, ever. If both he and my fiancé were to file claiming them, my assumption is that after investigation, his claim would be proven fraudulent and he would be the one in violation of tax law since he knowingly filed on children he does not support. Fortunately, when he left our lives I was careful that he did so without any of the kid's personal information such as soc. sec.#'s and such.

MukatA and all who responded, thanks so much for the information and feedback. My fiancé just called from his tax appt this morning to verify my social as well as they are indeed allowing him to claim all 5 of us as dependants. We aren't looking for anything other than what is a rightful benefit to us under American tax law as citizens.

Here is where it got into a grey area. If the mother isnt claiming the child on a tax return .. then shouldnt it fall onto the bio dad to be able to deduct for the child ? The reason being it still meets the IRS rules for being a Qualified child deduction. If that is the case then how is it the boyfriend can use the child as a relative deduction ?

Thats where Im having trouble understanding.


What would the IRS do should the bio father and the boyfriend both deduct the child.. That is the way Im looking at it. I believe the deduction would go to the bio dad and the boyfriend would have explaining to do.


I'm not really sure why it's a grey area; their bio father does not meet any of the guidelines. They don't live with him at all, ever. He does not support them at all, ever. If both he and my fiancé were to file claiming them, my assumption is that after investigation, his claim would be proven fraudulent and he would be the one in violation of tax law since he knowingly filed on children he does not support. Fortunately, when he left our lives I was careful that he did so without any of the kid's personal information such as soc. sec.#'s and such.

MukatA and all who responded, thanks so much for the information and feedback. My fiancé just called from his tax appt this morning to verify my social as well as they are indeed allowing him to claim all 5 of us as dependants. We don't want anything more or less than that.

Did you file for child support against your ex ?

Oh yea. It's part of the divorce decree and was calculated based on an approximation of what his line of work is since he didn't show for the hearing and evades attempts to gather information on his work status.

I knew he wouldn't pay it (at least not willingly) when they ordered it and he doesn't. He also has two other children that are older, so their cases would come first if he did actually work and the system found him and was able to garnish wages. My kids will come last. The best I can hope for is that the support amount continues to accrue and after it reaches the amount necessary to pursue prosecution, the state will go after him. I'll have to request that as they don't do it automatically, at least that's my understanding. The judge called it "a come to Jesus meeting" when I told him I knew he would never pay so ordering it was pointless. He said that eventually it would add up and he could be prosecuted and jailed.

He's just pretty much useless. He'll never claim them on taxes because he owes so much child support he would never get a refund anyway, so really... thats at least one thing I'll never have to worry about.

The male fiancé CAN claim the children as dependent if the children have lived with him the entire year. He can also claim the girl friend as a dependent.

He cannot file as Head of House, nor can he claim either the Earned Income Credit with children, nor can he claim the $1,000 Child Tax Credit.