Thank you for your question.
In fact you or he or both should have received a letter by now denying the claim and asking for evidence to support it. The IRS is no infallible and sometimes things like this can be missed.
Perhaps it is not showing up in a way to cause them to question it. Have you seen your husband's returns, to know for a fact he is claiming them as dependents?
He may be simply giving you a hard time, but is not really claiming them.
You can contact the IRS with a letter asking them to look into your husband erroneously claiming your children, and include the evidence that you are the one. This will set the matter to rest, because the IRS will then take a look at his returns and determine that this is the case. If he has, it will eventually be discovered, and it is better to deal with this sooner than later.
I have copies of both 2006 and 2007 ex-husbands tax returns
Shows that ex used our old divorce decree which no longer is valid
I will try to call IRS again, but if i get the same responce, are there any other ways to make IRS see?
Did the IRS allow your claim? Did they allow your husband's claim?
What was the IRS response when you CALLED them.
he filed first and IRS allowed his claim
I filed my claim too late and was denied
Here is what you do. He is using the old divorce decree as you said, which is no longer valid.
You submit an ameded tax return, form1040X, along with a cover letter describing why you are entitled to the deduction and not your husband. Make sure you point out the decree he is using is superceded by a more recent court order.
Include the following.
1. Front and signature page from the original decree, with only the pages addressing taxes and custody. Makes sure you put a cover sheet on this clearly labeling it as "last names of both of you, divorce decree, OLD and superceded, dated XXXXXX.
2. Front and signature page of the new court documetns with only the pages addressing taxes and custody. If the new documents have wrods to the effect that the previous one is null and void, include those pages as well. Put a cover page identifying this in the same way as before with NEW and Eneforce.
3. Any othe documentation that shows you are the custodial parent:
Make sure you include a statement that you have never signed any forms or statements allowing the non-custodial parent to claim the child.
Then mail it to the IRS. Talking to them on the phone will not get action. You have to do it in writing.