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Robin D.
Robin D., Senior Tax Advisor 4
Category: Tax
Satisfied Customers: 7266
Experience:  15years with H & R Block. Divisional leader, Instructor
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My former spouse sent me an email in 2010, in which she tells

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My former spouse sent me an email in 2010, in which she tells both my college-aged son and me that we need to count her out completely for any type of financial support for him. She proceeds to inform us that, since the financial burden will fall 100% on me, that she will relinquish his dependent deduction starting with 2010.
Lo and behold (you can guess what happened next), she filed and claimed him as a dependent. I am finally filing for both 2010 and 2011, and have read that the normal IRS procedure would be to reject the deduction and audit the issue.
I sent a certified letter to her accountant, expressing my concern over willful wrongdoing, since she indicated she would not claim my son, yet offering her a good will $1,000.00 if she voluntarily amends her returns but have received no reply.
What is my next step?
Submitted: 2 years ago.
Category: Tax
Expert:  Robin D. replied 2 years ago.

Robin D :

Hello and thank you for using Just Answer,
Your next step would be to claim your son as a dependent and let the IRS sort it out. If your son lived with you and you and your ex were divorced after 1984 and before 2009 and your decree says your wife gets to claim the child then she can claim him with the divorce decree, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The same goes for you, if your decree says you get to claim him and your divorce was between 1985 and 2009, you do not need her to sign anything. If you divorced after 2008 then whoever can show that the child lived with them will be given the exemption when the IRS makes their determination.
The noncustodial parent cannot attach pages from the decree or agreement instead of Form 8332 if the decree or agreement went into effect after 2008. The custodial parent must sign either Form 8332 or a similar statement whose only purpose is to release the custodial parent's claim to an exemption for a child, and the noncustodial parent must attach a copy to his or her return. The form or statement must release the custodial parent's claim to the child without any conditions.
You need to look first as to when the divorce happened and then only what the decree states if before 2009. File and claim him if he lived with you and be ready to send the documentation that the iRS will request when they begin to process your return. The IRS Form 886-H-DEP will let you know what documentation you will need to send:
http://www.eitc.irs.gov/public/site_files/F886-H-DEP-2011.pdf
You can gather your documentation and send a copy (COPY ONLY) with your tax return if you wish. An attached statement explaining why (simple and short) can also be included.

Customer:

Our divorce took place in 1994. The decree spelled out the distribution of exemptions for the first few years, and then left it up to the parents as circumstances dictate. Our son is now 22, and in college. My ex spouse partially supported him during 2008 and 2009, and I agreed to her taking the exemption, but I took over henceforth. The "agreement" we have is her email of 2010 stating her inability to pay for any more expenses, thus relinquishing her IRS benefits - all the divorce decree requires, that is an agreement between the parties.

Customer:

Our divorce took place in 1994. The decree spelled out the distribution of exemptions for the first few years, and then left it up to the parents as circumstances dictate. Our son is now 22, and in college. My ex spouse partially supported him during 2008 and 2009, and I agreed to her taking the exemption, but I took over henceforth. The "agreement" we have is her email of 2010 stating her inability to pay for any more expenses, thus relinquishing her IRS benefits - all our divorce decree requires, that is, an agreement between the parties.

Customer:

Our divorce took place in 1994. The decree spelled out the distribution of exemptions for the first few years, and then left it up to the parents as circumstances dictate. Our son is now 22, and in college. My ex spouse partially supported him during 2008 and 2009, and I agreed to her taking the exemption, but I took over henceforth. The "agreement" we have is her email of 2010 stating her inability to pay for any more expenses, thus relinquishing her IRS benefits - all our divorce decree requires, that is, an agreement between the parties. Assuming that the above constitutes sufficient proof that she, colloquially speaking, went back on her word, or worse, committed fraud, if I file, send a brief note with a copy of said email and the portion of the decree to the IRS, what will happen next?

Expert:  Robin D. replied 2 years ago.

Then file your returns and claim your son as a dependent. If he lived with you then she would have to proof that he really lived with her instead. The fact that he was away from your home for school purposes would not matter. You can send a copy of the divorce decree (the page that states you are to decide yourselves) and the e-mail along as well for added proof. The main thing now is who he lived with when he was not away (if he was away) at college.

This is not going to be a quick determination but the more you do at the start, the faster the issue will be resolved.

Customer: replied 2 years ago.
Regarding my son's place of residence during breaks, I can demonstrate
that I paid for a year-round apartment lease, thus, he stayed put at school, even during summers. He did come back for "visits" but he would unquestionably state that he lived on his own, and that I paid for his rent.

He is a lucky boy, I bought him a car too, in 2011, which he needed to have to get to campus. I just don't want to open a pandora's box with the IRS. My refund with my son as dependent would be $7000, and without him $4000. How dangerous would be to open up an audit?

The other option would be to file without him as a dependent and try to collect the $3000 in small claims court?
Expert:  Robin D. replied 2 years ago.

If you retained a room for your son in your home and was away at college, you provided his support,and he did not pay more than half of his own support then you should claim him.

How dangerous would be to open up an audit?

As long as you have your documentation then you should have no fear. If the IRS asks about his support then that is in fact an audit (a coorespondence audit as opposed to a desk audit).

You will need to decide if which way but in actual tax law, if you legally have a dependent exemption you are not supposed to ignor it and let someone else claim them. The only exception to letting anyone but the custodial parent claim the exemption is when using the Form 8332 to let the noncustodial parent claim the child.

My only concern now (especially after you added more) with your scenario is where was his legal address? If not with you and not with his mother then neither could claim him no matter how much you give him. If his legal address is still with you then you would not have a problem. Being away at school is fine, like I said, but his legal home would still need to be your home and the only reason he is not staying there would be school. Meaning when he is not in school he does come home.

 

Customer: replied 2 years ago.
I have a feeling that she will try to prove he lived with her, which would be false. Neither did he live with her nor did she provide a cent toward his education. She did help him fill out FAFSA and did use her address for it, which concerns me but I understand that FAFSA and the IRS are not interdependent agencies, correct?
Summarizing:

1. I am the custodial parent (although he is 22 now)

2. I pay for his support

3. She voluntarily and in writing indicated that she would not claim him as a dependent

If I were the IRS, it would be case closed, but...

How long of a process is this from the time the IRS writes to me until the case is resolved? Will this open up an audit of my entire return? I am not concerned with being audited for content-it just takes so much time to dig up records and give credible rebuttals-it is not worth the $3,000. Arghhh.


Advice?
Expert:  Robin D. replied 2 years ago.
No, the issue would not bring up an audit of your entire return. How long will it take from the first letter? That will depend on how much info you send in the beginning. The IRS works in 15 and 30 day limits (generally) if you send the info with your return then you can expect to take off at least 60 days wait time but you must remember, the IRS will be giving the other person a chance to state their position. They normally give 30 days at a time to respond and if your ex decides to fight it she can request numerous extensions. I personally have seen where it has taken 6 weeks and up to 8 months for resolution.
Customer: replied 2 years ago.
Thank you, XXXXX XXXXX one additional detail: I do not want to make my son uncomfortable, but I wonder if a statement from him would help my case. If you think this is correct, what language would best clarify matters for the IRS without "pitting" my son against his mother?
"This note serves as confirmation that my father, Duilio Dobrin, provided more than 50% support toward my college education for the 2010 and 2011 tax years. My legal address is at my father's home."

Would that suffice? Any suggestions/edits?


Secondly, would you please verify the information that in the event of a dispute, the parent with the highest AGI will be entitled to the deduction.


Thank you ver much!
Expert:  Robin D. replied 2 years ago.
He could state that his home is with you and has been since..... but the other items of proof I made available to you in the link to the Form 886-H is what the IRS will want.
Robin D., Senior Tax Advisor 4
Category: Tax
Satisfied Customers: 7266
Experience: 15years with H & R Block. Divisional leader, Instructor
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