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There are two types of dependents, “qualifying child” and “qualifying relative”.
Here are the tests to determine if you qualify to claim either on your tax return. In order to be a “qualifying child”, seven tests must be passed.
1) You cannot be a dependent of another taxpayer.
2) The child can not file a joint tax return with another taxpayer.
3) The child must be a US citizen, a US national or a resident of the US.
4) Relationship test- The child must be your son, daughter, stepchild, foster child, or a descendant of such.
5) Member of household test-The child must have lived in your home over half of the year.
6) Age test-The child must be under age 19 at the end of the year or under 24 and a full time student for at least any part of 5 calendar months during the year.
7) Support test- The child can not provide over half of his/her own support.
Here are the tests for a qualifying relative.
2) The potential dependent can not file a joint tax return with another taxpayer.
3) The potential dependent must be a US citizen, a US national or a resident of the US.
4) Relationship test-The potential dependent must be your child, a sibling, a parent, a step or in-law, or a descendent of any of these. Also, any person who lives in your home the entire year could be also be a “qualifying relative”.
5) Not a qualifying child test-The potential dependent can not be a “qualifying child” of any taxpayer.
6) Gross income test-The potential dependent can not have gross income of $3700 or more. Generally, gross income is all income that is not exempt from tax. If the person is receiving social security disability or SSI only, this is not considered taxable income so would not be included in the gross income test.
7) Support test- You would have to provide over half of the potential dependent’s support. Here is a worksheet to assist in determining where the person’s support comes from. http://www.irs.gov/app/vita/content/globalmedia/worksheet_for_determining_support_17.pdf
Now, just because your ex claimed the children does not mean he was entitled to claim the children. Generally, the IRS does not know if someone should claim them unless someone else tries to claim them as well. Then, the IRS knows there is an issue. The custodial parent is the one who is entitled to claim the child, if all the other tests listed above are passed. The custodial parent is the parent the child resides with over half of the year. If you are the custodial parent, you would have to sign a Form 8332 to release the child’s exemption to your ex providing your divorce was after 2008. There are different rules for divorces prior to 2009 on the requirement of Form 8332. This only allows him to take the exemption, child tax credit, and education credits. The HOH filing status, Earned Income Credit, and dependent care credit still go to the custodial parent.
If you are the custodial parent in any of the open tax years, which is 2009-2011, I suggest reviewing your tax returns to determine if there are amendments you need to make. If you file a tax return claiming the same deductions/credits that your ex did, the IRS will send you both notices. If you feel you are correct in taking the credits/deductions, you do nothing. If you both do nothing, the IRS will send the second notices to each of you requesting proof of the deductions/credits. One of the big issues the IRS will look at will be proof the child lived with you over half of the year.
Whoever is denied the credits/deductions will have to pay the IRS back, plus penalties and interest, for the refund received due to the credits/deductions taken.
If this answers your question, please click the accept button as this is the only way we get paid for the assistance we provide to you. If you need more clarification, please let me know. If I am not available at the time, I will be. I appreciate the opportunity to assist you and I look forward to your response.Stephanie
Stephanie B. had fantastic advise for you. Since you did not file a return you can report him for filing with fraudulent dependents.
You may fill out Form 3949-A online, print it and mail it to:
Internal Revenue ServiceFresno, CA 93888
If you do not wish to use Form 3949-A, you may send a letter to the address above. Please include the following information, if available:
Although you are not required to identify yourself, it is helpful to do so. Your identity can be kept confidential.
Here is a link to the 3949-A Formhttp://www.irs.gov/pub/irs-pdf/f3949a.pdf
Please, if you are only going to click ACCEPT for one of the answers you have received, click on Stephanie's response to you. She has invested more time in her assistance to you explaining the rules so you will have the information you need. I was only answering your followup because she is not online at this time.