I just met my bio dad two years ago, and when I got divorced I moved in with my kids while I got to college. He filed taxes last year, and got a 1242 code and had to send in information proving we lived here all year. We sent all that information along with a dna test that shows he is my father even though my mother added my step-dad as my father on my birth certificate when I was 9. His tax preparer said he shouldn't have any trouble since we have the dna test, but the IRS just closed out the case and now we have to wait an additional 6 weeks for processing before we find out if we get the refund or not. Is the tax preparer correct?

Yes, he is.

Actually, the tax preparer may not be correct. If you mom added your step dad to the birth certificate, he may have adopted you. Legally, that's the only way she could have. And if there was an adoption your bio dad's rights were severed. So the DNA test would be moot in that case.

On the other hand, if you lived with your bio dad and he provided more than 50% of your support, that could entitle him to claim you as a dependent, regardless of his legal affiliation.

Adding the step-father to the birth certificate is NOT the same as an adoption In my opinion.

This is more a LEGAL question rather than a tax question, but unless there was a formal adoption which severed the bio dad's right's, he retains the privileges of parenthood from a tax perspective.

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Originally Posted by ScottGem

Actually, the tax preparer may not be correct. If you mom added your step dad to the birth certificate, he may have adopted you. Legally, that's the only way she could have. And if there was an adoption your bio dad's rights were severed. So the DNA test would be moot in that case.

On the other hand, if you lived with your bio dad and he provided more than 50% of your support, that could entitle him to claim you as a dependent, regardless of his legal affiliation.

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I think he did adopt me, although I don't think it was quite legal the way she did it. My real father never knew I existed until I got the truth out of my mother and tracked him down. My bio dad called the IRS and explained the situation, and they said he should be able to claim my children and I with the dna test. I am now in the process of trying to figure out how to get my birth certificate corrected. And yes I lived with him all year, and he supported me and my children while I was attending college.

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Originally Posted by AtlantaTaxExpert

Adding the step-father to the birth certificate is NOT the same as an adoption IMHO.

This is more a LEGAL question rather than a tax question, but unless there was a formal adoption which severed the bio dad's right's, he retains the privileges of parenthood from a tax perspective.

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I thought it was an adoption, but just called my mother and found out it was basically him signing a paternity affidavit. I was just worried, because dad has been waiting so long for this tax situation to be straightened up and I thought maybe the tax preparer was wrong.

You live with him the year in wuestion, go to college, he pays 50% toward supporting you, nobody else claimed you. He needs to keep on this and Lake sure it goes in his favor unless there is a very good, right reason proved by the IRS

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Originally Posted by Em1987

I thought it was an adoption, but just called my mother and found out it was basically him signing a paternity affidavit. I was just worried, because dad has been waiting so long for this tax situation to be straightened up and I thought maybe the tax preparer was wrong.

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As ATE said, this is partially a Family Law question, partially a Tax Code question. I'm not sure, from a Tax Code standpoint whether he has to be your legal father to claim you. IRS Publication 501 (Publication 501 (2012), Exemptions, Standard Deduction, and Filing Information) defines who can claim dependents and who is qualified to be a dependent. The way I'm reading the rules, a dependent has to be a LEGAL relative first and foremost.

If your step dad signed an affidavits of paternity and your mom accepted it, then your step dad is your legal father and your bio dad has no legal rights as your father. That is a Family Law issue and I'm sure of that point. That says to me, that before your bio dad can claim you as a dependent, he needs to go to court and challenge the affidavits your step dad (now your legal father) signed. A court then has to issue an order of paternity. Depending on local laws, it may be too late to challenge paternity.

I suggest your bio dad consult a Family Law attorney in your area who will know the local laws and whether paternity can be challenged and established in his favor.

ScottGem, a 'qualifying relative' does not have to be a relative.
The 3 criteria are
HE/SHE MUST LIVE WITH YOU ALL YEAR AS A MEMBER OF YOUR HOUSEHOLD
HIS/HER GROSS INCOME IS BELOW X (don't know what it is this year, probably under 4K)
YOU PROVIDE MORE THAN HALF OF HIS/HER SUPPORT FOR THE YEAR

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Originally Posted by joypulv

ScottGem, a 'qualifying relative' does not have to be a relative.
The 3 criteria are
HE/SHE MUST LIVE WITH YOU ALL YEAR AS A MEMBER OF YOUR HOUSEHOLD
HIS/HER GROSS INCOME IS BELOW X (don't know what it is this year, probably under 4K)
YOU PROVIDE MORE THAN HALF OF HIS/HER SUPPORT FOR THE YEAR

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You're right Joy. I missed point 2:

The person either (a) must be related to you in one of the ways listed under Relatives who do not have to live with you , or (b) must live with you all year as a member of your household2 (and your relationship must not violate local law).