Your Life

Your Life

Major life milestones often have a major tax impact. Changes in your marital status, having a baby or adopting a child can have significant impact on your taxes. This is the place to ask questions about dependents, real estate, and other various scenarios that play a significant role in what taxes you pay.

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Pioneer
Posts: 1
Registered: ‎01-17-2014

Head of Household & EIC - Divorced parents

My divorce has been final for over a year. I have two teenagers who live with me the majority of the year (they alternate weekends and spend a little more time in the summer with him). He pays CS and makes more than I do. I meet the qualifications for HOH (I claimed it last year) but am supposed to waive the dependency exemption to him every-other year. Since he cannot claim HOH status since they don't live with him more than half of the year, can I still claim HOH though I'm waiving the exemption? Also, I received EIC last year, and would qualify again this year - can I file for it though I don't claim them for the dependency exemption?

Alumni Associate
Posts: 1,925
Registered: ‎12-13-2013

Re: Head of Household & EIC - Divorced parents

Hello Savannah, and welcome to The Community.

With the details you provide it appears that you are the custodial parent which entitles you to file as HOH and claim EIC as long as you satisfy the requirements for both. You do not have to claim your children as dependents in this situation.

Your former spouse claiming your children as his dependents will also be entitled to claim the Child Tax Credit if qualifications are met, but cannot file as HOH or claim EIC. One thing you need to do is to supply him with a completed Form 8332 Release Claim of Exemption which he must mail to the IRS (even if he efiles his tax return). I've provided a link below to this form.

I hope this helps. Good luck to you.

http://www.irs.gov/pub/irs-pdf/f8332.pdf
WillMc1
Tax Professional (Retired)
Pioneer
Posts: 1
Registered: ‎01-12-2017

Re: Head of Household & EIC - Divorced parents

I have been in the dark so to speak on how this EIC works for a few years now apparently! My ex husband has not had visits with my two in years. He has claimed the EIC all these years and I have missed out on getting it. Is there anything I can do about him filing for the EIC and him not meeting the residency test? He is going to attempt to file taxes on my daughter this year and I am trying to file first since I have NO clue how to stop him from recieving the EIC when he doesn't qualify in not having my daughter in his household at all through year. He does pay childsupport for kids, and in our divorce he is to claim my daughter as dependant. HELP!!

Alumni Associate
Posts: 1,925
Registered: ‎12-13-2013

Re: Head of Household & EIC - Divorced parents

[ Edited ]
Hello Anna1978. Welcome to the Community.

I am sorry to hear that your ex husband has been fraudulently claiming Earned Income Tax Credit (EITC) which should have been your claim. Because you are the custodial parent of your children, they would be your "qualifying children" (assuming you meet all the criteria for this purpose) for filing as Head of Household, and claiming EITC.

Your plan to try and be the first to file your 2016 tax return is ok, but the fact remains you are still owed for prior years EITC. Truthfully there is nothing you can do to keep your ex husband from filing his tax return, however you certainly can (and should) report his fraudulent claiming(s) for EITC. The IRS is really proactive in reducing/eliminating such claims.

My suggestion is you should file a Form 3949-A Information Referral (as soon as possible) to report your ex husband's fraudulent claims of EITC for the years prior. This would alert the IRS of the false claims you are alledging and an investigation would take place to straighten it all out, meaning they could deny his past claims which would allow you to amend your returns to include any EITC you're entitled to. Here is a link to that form for your convenience:

https://www.irs.gov/pub/irs-pdf/f3949a.pdf

I hope this is helpful information. Good luck to you.
WillMc1
Tax Professional (Retired)
Tax Pro
Posts: 1,445
Registered: ‎09-04-2014

Re: Head of Household & EIC - Divorced parents

Welcome to the community Anna1978

with the information you have provided, you are indeed the custodial parent of your children and are the only one eligible to claim them and the credits that follow unless you sign an 8332 giving your ex the right to claim them as exemptions and to receive te child tax credit and additional child tax credit if he meets the requirements. ( if your divorce decree was before 2009 and does not contain any contingencies, he could attach that to his return instead of the 8332., signed by you.) Only you are eligible to use Head of Household status, EIC,and child care credit, if you meet the requirements.  He is definitely not eligible for EIC and Head of Household and should never have received it. 

You can amend any open years to claim HH and EIC (2013, 2014 and 2015). Attach information such as school records, rent agreement showing the children live with you, etc. . ÍRS will then apply the tie-breaker rules which you, as full time custodial parent would win.

I would suggest you visit an HRBlock office and explain your situation to them. They will be happy to assist you.  Depending on your income, this could mean a substantial refund for each year.  

I might mention, your ex will be required to pay back all the monies he received by filing his returns incorrectly. 

I hope this information is helpful. 

BettyB
Sr. Tax Analyst
Alumni Associate
Posts: 1,925
Registered: ‎12-13-2013

Re: Head of Household & EIC - Divorced parents

[ Edited ]
My apologies Anna1978. I worded my earlier answer in a confusing manner, and can only blame it on lack of sleep.

Betty is absolutely correct in her answer; you should amend your prior year returns right away to begin the IRS processing procedures since it can take a number of months (or even longer), especially in your situation. However, I would still suggest filing the Form 3949-A as I mentioned in my first answer because it serves as more of an immediate alert that one or more allegedly fraudulent claims for EITC had been filed by your ex husband, which could likely speed the investigative process up a little bit. If you file amended tax returns only, then the IRS would have to wait until the amended return(s) are physically entered into their computer processing system (for each year) before any cross-referencing could be done - comparing your ex husband's tax return(s) to your amended ones before they begin their investigation into your case.

Either way you proceed will likely provide the same results, but I believe that filing Form 3949-A as well as amending your affected tax returns could possibly speed the process up just a little. Again I apologize for my poorly worded earlier answer, and thank you Betty for adding to this discussion.
WillMc1
Tax Professional (Retired)
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Trusted Council Member
Posts: 6,191
Registered: ‎02-23-2016

Re: Head of Household & EIC - Divorced parents

Hi Anna,

 

Welcome to the community.

 

I'm sorry to hear that this has happened to you, but let's see if we can prevent it from happening again.

 

First, you should definitely file your tax return as soon as filing season opens at 8am on January 23rd.  If you're able to do that then chances are your ex-spouse will not be able to claim your kids because you will already have done so.

 

Next, in addition to Will's suggestion, you should call the IRS' identity protection dividision at 1-800-908-4490 and request an identity protection PIN number for each of your kids.  This will prevent anyone other than yourself from claiming them for at least 3 years starting with your 2017 tax return.  IP PIN numbers change each year, so once you file your tax return your IP PIN for the year cannot be used again.  The IRS issues you a new PIN number each January, but they will only send your IP PIN letter once, so make sure you put it in a safe place when you receive it.

 

I hope that I've been able to help you out.

 

Louis,

Senior Tax Advisor (Tampa, FL)