I have sole custody of my child but the child's father's brother claimed him as a tax deduction

Question

I have court papers showing that I have full and sole custody of my son and that he was with me like 99% of the year. I let my son's father have him a few weekends last year but only a handful.

My son's father told his brother that he should claim my son as a tax deduction and he did.

This happened last year too. My son's father filed taxes before I did and then when I filed my taxes and claimed my son as a dependent I was told by the IRS that my son had already been claimed (although last year it was the father claiming him - not the brother).

How can I dispute this?

Answer 1

Your E-file return will be rejected if you are the second person to file, so you should file a paper return claiming your child, and you'll get your refund as you filed it.

You and the other party claiming your child will both receive letters from the IRS notifying you that someone else has claimed your child as a dependent. If neither party files an amended return, a second letter from the IRS will ask for proof, which you should respond to immediately with a copy of the court order.

As long as you have never provided form 8332 releasing your right to claim the child as a dependent, the IRS should accept your return and make your ex and his brother pay back the difference for their refunds with interest.

If you didn't claim your child because of this problem last year, you should also file a paper 1040-X to amend that return and claim the child.

Edit: There are quite a few comments with differing opinions about who should have full custody. Court orders often cover this scenario explicitly requiring the custodial parent to file form 8332 if the the non-custodial parent is assigned the tax benefits through the divorce decree. From the details shared by the OP, it seems like this case would clearly favor the custodial parent unless the divorce decree specifically assigned those rights elsewhere which the OP should have been aware of.

Answer 2

You need to call the IRS at 1-800-829-1040 and explain that you are the custodial parent. The IRS service representative will tell you what to do.

Generally what will happen is that you will re-submit your return and the IRS will examine claims of both parties and decide who gets the dependent.

Answer 3

I would highly advise you to speak to a lawyer. Given that the court gave you full custody of your child, then you are the one to claim him as a dependent. The IRS doesn't know the outcome of your divorce, therefore they had no way of knowing who has custody, they go off of who filed first.

Answer 4

A not dissimilar thing had happened to me. Nathan's answer is correct from a technical point of view, but you should also provide a letter to the IRS and selected highlighted pages from the court order. The letter should state your situation and point out areas of the court order that supports your claims.

Doing this, in my case, prevented the IRS from sending me a letter and only sent a letter to the incorrectly claiming party. That party could not dispute my claim, so I am pretty sure they had to amend their tax return.

In subsequent years, you might also want to send a very similar letter, that points out the troubles you have had in the past and that you just want to be proactive. Again it would highlight the areas of the court order that supports your claims that you are able to claim your child for the year in question.

Answer 5

Per internal protocol, ANY additions to a HARD COPY tax return,
(threat, joke, serious material, etc,) are put aside for review, accordingly.

So be proactive; Don't e-file, if you want to win this.

Include/staple the court order (move the relevant page to the front) and a cover-letter statement (in front of the court order) that you know another individual (include name/address/phone#s since you prob don't have SSN) has been illegally trying to claim your child.

For yourself, Include an a phone number and maybe an email address (create a new gmail that forwards to you, so ONLY the IRS (and no spammers) know/have it. Odds of it being used are low, but what the heck.

Forwards are easy to set up, through account settings (the little gear on the Top-R of gmail's screen). If you get a reply back, remember to use the appropriate email account.

Mention the number of years this has been going on and re-state the court order date precludes this, and you formally want charges filed upon the offender (and that you want to be informed of the case number, as he has defrauded you by mail-fraud).