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jamijo · Dec 31, 2006, 06:21 PM

I am a single mom living with the father of our only child. He is the main earner in the family but I provide the childcare and work part-time. We have no plans to marry and may not be together much longer. He has expressed a strong desire to claim our son and says "we" will get more money back if he does. I feel I should claim our son as a financial safety net in case he leaves us. Who has the right to claim our son and is there any validity to the more earned more back theory?

AtlantaTaxExpert · Dec 31, 2006, 06:31 PM

Technically, the person who provides more than half of the child's support is supposed to claim the child. However, the IRS will always side with the natural parent if it get contested. I assume you made more than $3,300 working part-time. If not, he can also claim YOU as a dependent.

I recommend you prepare the returns BOTH ways to see which results in the least amount of tax paid. You can do this easily using the File Taxes Online - Do Taxes FREE - File Taxes With TaxACT tax website.

However, if you allow him to claim the child, it is essentially an irrevocable decision because you will have to acknowledge in writing that he provided more than half of the child's support. Further, the refund is in HIS name only. Once filed and collected, the refund will belong to him only; you will have no claim on it.

If the two returns shows that he would get an significantly larger refund, you should get a check from him for a portion of the refund BEFORE you allow him to file. That way, if he withholds your share of the money, you can collect on the check, in court if necessary.

AtlantaTaxExpert · Jan 1, 2007, 10:31 AM

Rishy39 is correct about HoH.

Only ONE of you can file Head of Household. The other must file Single.

However, the Single person CAN claim the child as a dependent, while the other person can claim Head of Household without claiming the child's dependency.

To do all the possible combinations requires access to a quality tax software package. That's why I suggest the TaxAct website.

If you want professional help, you can contact me at [email protected].

ScottGem · Jan 1, 2007, 10:43 AM

Originally Posted by jamijo

I feel I should claim our son as a financial safety net in case he leaves us.

ATE gave you very good advice, but I would add one thing in respect to the above quote. I'm not sure what you are thinking there, but there is really no bearing. The decision as to who can claim a dependent child can be made year to year. If you do split and retain physicial custody then you can just claim your son for that year. The 50% of support rule comes into play whether your son lives with you or not.

AtlantaTaxExpert · Jan 1, 2007, 02:03 PM

Scott, your points are valid.

However, I believe Jamijo is concerned that if she allows her boyfriend to claim her child (which, in all likelihood, he CAN do due to the 50% support rule), he will then keep the enhanced refund and boot her and her son out. In my opinion, that is a valid concern on her part (have seen it happen a number of times over the past 15 years of tax work), which is why I recommended she get a check from him BEFORE she lets him file the return.

ScottGem · Jan 1, 2007, 02:47 PM

That is a possibility, but it sounded to me like she was thinking more long term. I would just wonder if the refund, even enhanced would be that big to make a big difference. Isn't the average refund only a few thousand dollars? Would half of that really count as a safety net? That's why I thought she might be talking longer term.

AtlantaTaxExpert · Jan 1, 2007, 03:52 PM

Scott:

With the Earned Income Credit, adding a child to your return could INCREASE your refund by about $2,000. That's a LOT of money for the working poor.

taxsearcher · Jan 1, 2007, 04:33 PM

There is a tiebreaker provision where more than one person claims the child. The right belongs first to the parent. If both parents claim the child, the tiebreaker awards to the one with whom the child lived most during the year. If that is equal, it goes to the parent with the higher AGI. See the following IRS link:

Publication 501 (2006), Exemptions, Standard Deduction, and Filing Information

AtlantaTaxExpert · Jan 1, 2007, 04:54 PM

The fact that the burden of proof is on the taxpayer has been a fact of life for generations when it comes to income taxes.

The other point about BOTH parents filing as HoH is also a problem, though NOT in this case because they are living together.

Finally, I failed to factor into "common law marriage". The state in which they live may consider them legally married based on common-law statutes. Both partners have to agree that they are to be considered married, but if they do agree, the IRS will recognize that as a valid marriage and they can file jointly, in which case the refund belongs to them equally.

ScottGem · Jan 1, 2007, 04:57 PM

Originally Posted by rishy39

I was just audited because of this very problem. When it comes time to prove where the child lived, if the other parent will not provide the form (as in my case) the IRS will request proof. Of course, there is no way to prove a child lived with you more than 50% of the year

The test is not where the child lived but who provided the majority of the support. While room and board is part of the calcuation its not the only one. Lets say the IRS determines that $15K was spent in providing support for the child. That would include the cost of food, housing, clothing, medical care, etc. Now lets say that the divorced father pays child support of $700/month. That comes to $8400. In that case the father pays more than 50% of the support, even though the child didn't live with him at all during the year.

I'm not sure if the IRS has standard tables of what the cost might be to raise a child (maybe ATE can answer that). But, if there is a question about who can claim the child, receipts for any expenses need to saved.

AtlantaTaxExpert · Jan 1, 2007, 05:38 PM

Guys, In my opinion, we are going into this WAY too much!

In 99.9% of the cases, the parties involved can come to an amicable agreement as to who may claim the child.

In the .1% when there is some contention, the best way to prove how long a child has lived with you are school and medical records. Church records are also acceptable proof, but both the schools and doctors have legal requirements to show with whom their child lives.

As for support, in most cases, the divorce decree often cites which parent is supposed to claim the child, regardless of who provides the bulk of the support. In the past few years, the IRS now recognizes the divorce decree as the legal deciding factor in these cases. However, prior to 2001, they did NOT recognize the divorce decree. So the IRS does adjust as the law requires, even if it does take a while.

AtlantaTaxExpert · Jan 1, 2007, 09:58 PM

There is a presumption that the address that the school has on record for the child who attends classes on a daily basis is in fact where the child lives. Same logic applies for the address in the medical records and for the address in the church records.

The fact that the school, the doctor and the church are effectively beyond the influence of the parent(s) or grandparents involved in the custodianship allow them to be considered independent sources of information for the matter in dispute.