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Wendy Reed
Wendy Reed, Enrolled Agent
Category: Tax
Satisfied Customers: 3345
Experience:  15+ years tax preparation and tax advice.
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can I claim my boyfriends child if I support them both all year

Customer Question

H&R block told me no. If I can't where can I find this in writing?
Submitted: 7 years ago.
Category: Tax
Expert:  Wendy Reed replied 7 years ago.

Hi Jessica,

Unfortunately HR block is probably right. I will explain the rules to you and then give you a web reference so that you can see them in writing.

There are two types of dependents, qualifying children and qualifying relatives.

In order to be a qualifying child dependent, the child must be your natural, step or adopted child (or eligible foster child) or sibling, or a descdent of one of these. There are other tests as well, but your boyfriend's child does not meet this test.

In order to be a qualify relative dependent, the person must meet several tests, including the fact that he or she must not be the qualifying dependent of another taxpayer. If the child lived with his father for more than 1/2 of the year, he or she is a qualifying child of his father. This means that he or she cannot be a qualifying relative dependent of any other taxpayer. This is true even if his father does not claim him or cannot claim him. The rules changed in 2005.

You may be able to claim your boyfriend if he is a US citizen or resident, he lived with you all year, and he made less than 3300 in gross income in 2006.

This information can all be found in this publication: http://www.irs.gov/pub/irs-pdf/p501.pdf on pages 9-18.

Let me know if you need any additional help.

Wendy Reed, Enrolled Agent
Category: Tax
Satisfied Customers: 3345
Experience: 15+ years tax preparation and tax advice.
Wendy Reed and 3 other Tax Specialists are ready to help you
Customer: replied 7 years ago.
even if I have been with my boyfriend for 10 yrs and it is considered a common law marrige I still have no right to claim him? also I was in formed that the mother of my boyfriends child can claim him even if he didn't live with her all year and has not supported him is this also true?
Expert:  Wendy Reed replied 7 years ago.

To my knowledge California does not recognize common law marriages. The only way this would apply is if you were recognized as common law married in a state that does recognize it, and then moved to California. If this is true, then you and your boyfriend should either be filing married filing jointly or married filing separately.

The mother of the child cannot claim the child if he did not live with her at all during the year, unless:

1. There is a decree of divorce or separation that states that she can claim the child, and this was signed by both parties

2. Your boyfriend, as the custodial parent, signs Form 8332 to allow the mother to claim the child for Tax year 2006.

(I hope that HR Block was not the one that informed you that the mother can claim the child unless they gave you these additional circumstances)

Customer: replied 7 years ago.
H& R block said that since the father of the child was not working the mother can claim the child and unless another person claimed that child on their texes as a dependent there would be notheing anyone could do because there is no other person that could rightfuly claim him.Is there somthing that can be done if she does claim him?
Expert:  Wendy Reed replied 7 years ago.

Not exactly accurate.

Anyone can claim anyone else on a tax return; whether or not it is legal is the question.

The mother does not have the right to claim the child unless one of the exceptions stated earlier apply. If she does claim the child and no one else does, it is unlikely that any consequences will come of her actions. You may report her using this form: http://www.irs.gov/pub/irs-pdf/f3949a.pdf ---but the IRS has bigger fish to fry and I have never seen them respond to this type of reporting tactic.

A better way to "thwart" the mother's actions would be to have your boyfriend file his own return, and claim himself and the child. Even if he has no income, he is allowed to file an information return. This way, the child's social security number will show up on the return. If he does this before the mother and files electronically, and she also claims the child and files electronically, then her return will be rejected.

If you do not want to give up your boyfriend as a dependent (if he meets all the tests for you to claim him), then your boyfriend may file a return as a dependent, and include form 8901, claim for child tax credit: http://www.irs.gov/pub/irs-pdf/f8901.pdf .

This form can be used to claim a qualifying child for the child tax credit benefit, if the taxpayer is the dependent of someone else (your dependent). Even if he has no income, he will not get any money from the child tax credit, but the child's SS number will be associated with this tax benefit and make it more likely that there will be an investigation if the mother claims the child. If he files his return electronically this way before she files hers, it is also possible that her return will be rejected. You do not need HR Block to file your return this way, you can use a software product, or use IRS freefile service, available Jan 16: http://www.irs.gov/efile/article/0,,id=118986,00.html

Customer: replied 7 years ago.
Thanks for all the info that helped a lot. This was well worth the money.
Expert:  Wendy Reed replied 7 years ago.

Your Welcome, please tell your friends about us.

I hope your situation works out well!!!

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