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Merlo, Accountant
Category: Tax
Satisfied Customers: 9783
Experience:  25+ years tax consulting. Specializing in returns for US citizens living abroad
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Do I have the legal right to claim my 2 granddaughters on my

Resolved Question:

Do I have the legal right to claim my 2 granddaughters on my tax return as I did in 2008. They have lived in my house since birth for 8 and 2 years resp. as have their parents, my son and daughter in law. Can their mother and or father claim them when neither work. I fear their maternal grandmother is going to try to claim them even though she has paid nothing toward their housing at all. She has lied on her taxes before. What can I do legally?
Submitted: 8 years ago.
Category: Tax
Expert:  Merlo replied 8 years ago.

You may claim your granddaughters as long as the following rules can all be met:

1. They are under the age of 19 or under the age of 24 and a full time student.
2. They lived in your home for more than half of the year.
3. The children did not provide for more than half of their own support.
4. They are not the qualifying children of another taxpayer

If they did not live with the maternal grandmother for more than half of the year, then you are the one with the right to claim the children.

If she also claims them on her return, you should go ahead and file your return and claim the children. If she files before you do, then you will not be able to e-file your return as it would be rejected, because it would show that those dependents had already been claimed by someone else. In that case you will need to mail a paper return. Attach a statement to your return that states all the facts (as shown above) that explains why you are entitled to claim them.

The IRS would then notify the other grandparent, and request proof from them of why they are claiming the child. If she cannot prove the children lived with her, the IRS would disallow her deductions and let you keep the exemptions.

If this was helpful please press the Accept button. Positive feedback is also appreciated.

Thank you.
Customer: replied 8 years ago.
The mother is going to be my first obstical as she said she is claiming them (maybe a lie to cover for her mother). The mother didn't work except for a couple months at K-mart. Must she allow me or may I go ahead and make the claim even though she said she was going to make the claim. I remind you she didn't pay a thing in rent or utilities for more than 15 months and counting.
Expert:  Merlo replied 8 years ago.
Hello againCustomer

If you daughter in law plans to claim your two grandchildren, then that is an entirely different story than the other grandmother trying to claim them. Their mother has the right to claim the children, regardless of how much support she provided or how much money she made.

I gave you the rules earlier for claiming a qualifying child. The one rule pertaining to support simply reads that the children themselves must not have provided for more than half of their own support. The wording on this rule changed a few years ago where it used to read that the taxpayer had to provide more than half of the support. The wording was specifically changed so that taxpayers on low incomes or who were receiving help from other family members (like you) to still be able to claim their own children as dependents.

If your daughter-in-law is not going to file a return or is not going to claim the children, then you would be the next in line to have the right to claim them, not the maternal grandmother who they do not live with. But if your daughter-in-law decides she wants to claim them herself, then she has the right to do that, regardless of the fact they lived with you and you paid all the bills.

What you should probably do is sit down and figure your taxes doing it both ways to see who benefits the most by claiming the children. Since your daughter-in-law only had minimal income, she will no doubt qualify for the earned income credit. So you just really need to see who would benefit the most by claiming the two children, and then base your decision on how to file on those factors.

If this was helpful please press the Accept button. Positive feedback is also appreciated.

Thank you.

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