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Subject Author Date
Can my Son's Mother's boyfriend claim my son on his tax return? thomasvr1 02-10-2007
Posted by thomasvr1 on February 10, 2007, 5:46 am
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 Here's the deal. My son's mother is on disability and does
not work or produce an income (although I do pay her child
support). Her boyfriend lives with her, in her house, and
he does work. He has no legal rights to my son at all. My
son lives with me 3 days a week. She told me that her
boyfriend claimed my son on his tax return for 2006. All
the info I can find at the IRS website says that since 2005,
a person cannot claim a child that is not their own, or you
have to be a blood relative, which he is not. I also found
info supporting that he cannot file as head of household
(posted below). My question is, how in the world could
someone legally claim a child that is not their own? If
they filed joinly would that make a difference? This
doesn't seem right, but apparently whoever did their taxes
for them let them do it. Should I call the IRS and report
it? Please help!

Info about Head of Household Status

Take the situation of an unmarried man living with his
unemployed girlfriend and her young child. The family of
three lives solely on his earned income.

In 2004, the man could claim his girlfriend and her child
both as his dependents and file his return as a head of
household, resulting in lower taxes. But for 2005, he may
not use the child to claim head-of- household status because
he and the child are not blood related.

Formerly, the primary test was the support test. The the
man was eligible to file as head-of-household because he
supported a child living in his household.

Now the primary test is the relationship test, and he would
fail that because he and the child are not related. And
since the mother is not employed, and therefore does not
file income tax returns, no one can claim this child as a
dependent -- not even the person who provides 100 percent of
the child's financial support.

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<< nor can it used, for the purpose of avoiding penalties >>
<< that may be imposed upon the taxpayer. >>
<< >>
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Posted by A.G. Kalman on February 12, 2007, 12:04 am
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 thomasvr1@gmail.com wrote:

> Here's the deal. My son's mother is on disability and does
> not work or produce an income (although I do pay her child
> support). Her boyfriend lives with her, in her house, and
> he does work. He has no legal rights to my son at all. My
> son lives with me 3 days a week. She told me that her
> boyfriend claimed my son on his tax return for 2006. All
> the info I can find at the IRS website says that since 2005,
> a person cannot claim a child that is not their own, or you
> have to be a blood relative, which he is not. I also found
> info supporting that he cannot file as head of household
> (posted below). My question is, how in the world could
> someone legally claim a child that is not their own? If
> they filed joinly would that make a difference? This
> doesn't seem right, but apparently whoever did their taxes
> for them let them do it. Should I call the IRS and report
> it? Please help!
>
> Info about Head of Household Status
>
> Take the situation of an unmarried man living with his
> unemployed girlfriend and her young child. The family of
> three lives solely on his earned income.
>
> In 2004, the man could claim his girlfriend and her child
> both as his dependents and file his return as a head of
> household, resulting in lower taxes. But for 2005, he may
> not use the child to claim head-of- household status because
> he and the child are not blood related.
>
> Formerly, the primary test was the support test. The the
> man was eligible to file as head-of-household because he
> supported a child living in his household.
>
> Now the primary test is the relationship test, and he would
> fail that because he and the child are not related. And
> since the mother is not employed, and therefore does not
> file income tax returns, no one can claim this child as a
> dependent -- not even the person who provides 100 percent of
> the child's financial support.

Based on the facts you presented (lives with you 3 days a
week), I have assumed that the remaining time is spent
living with his mother. Your son is the qualifying child of
his mother. As such, the boyfriend can not claim the child.
Only the mother can claim the child unless she releases the
dependency exemption to you. She can use IRS Form 8332 to do
that. If the facts are different and the child does spend
more than 6 months living with you, then your son is your
qualifying child and you should file claiming all the tax
benefits inherent in having a qualifying child. If the
boyfriend already e-filed, you would have to file a paper
return.

As the qualifying child of the mother, the child is the
qualifying person for his mother to file as head of
household. The boyfriend can not use your son as his
qualifying person to file as head of household.

Relative to a taxpayer claiming a dependency exemption for a
totally unrelated individual: It is possible under the
following circumstances: The qualifying person can not be
the qualifying child for someone else. The qualifying
person must reside with the taxpayer for the whole year. The
qualifying person's taxable gross income must be less than
$3300. The taxpayer must provide more than half of the total
support for the qualifying person. In the addition, the
taxpayer can not be the dependent of another taxpayer.

Under the above scenario, it is possible that your son's
mother is a dependent of the boyfriend if he passes the
tests I mentioned in the previous paragraph. Even if he
passes the test, he would still be unable to claim her if
you and she are married and agree to file a joint return
that reflects a tax liability. She can not be a qualifying
person for purposes of the boyfriend filing as head of
household.

Whether or not you should call the IRS and report the
situation is an individual decision that you have to make. I
have no idea what type of relationship you have or care to
have with the child's mother.

--
Alan
http://taxtopics.net

<< ======================================================= >>
<< The foregoing was not intended or written to be used, >>
<< nor can it used, for the purpose of avoiding penalties >>
<< that may be imposed upon the taxpayer. >>
<< >>
<< The Charter and the Guidelines for submitting posts >>
<< to this newsgroup as well as our anti-spamming policy >>
<< are at www.asktax.org. >>
<< Copyright (2006) - All rights reserved. >>
<< ======================================================= >>

Posted by <bluewaterbear on February 13, 2007, 1:30 am
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Although your son does not qualify his mother's boyfriend to
file as head of household, since they are not related, he
may still be eligible to claim the child as a dependent.
Everyone seems to jump on the relationship (blood relative)
part of the test but over looks the member of household for
12 months part. If your son lived under the roof of your
ex's boyfriend for a full twelve months and can prove that
he provided more than half of your son's support, than yes,
he can claim him.

<< ======================================================= >>
<< The foregoing was not intended or written to be used, >>
<< nor can it used, for the purpose of avoiding penalties >>
<< that may be imposed upon the taxpayer. >>
<< >>
<< The Charter and the Guidelines for submitting posts >>
<< to this newsgroup as well as our anti-spamming policy >>
<< are at www.asktax.org. >>
<< Copyright (2006) - All rights reserved. >>
<< ======================================================= >>

Posted by Phil Marti on February 13, 2007, 5:02 pm
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> Although your son does not qualify his mother's boyfriend to
> file as head of household, since they are not related, he
> may still be eligible to claim the child as a dependent.
> Everyone seems to jump on the relationship (blood relative)
> part of the test but over looks the member of household for
> 12 months part.

What you are overlooking is that with the mother in the
household, the child is her qualifying child, and hers
alone. The boyfriend cannot claim the child as a qualifying
relative dependent because the child is the qualifying child
of someone else. This holds true even if the mother doesn't
file and claim the exemption.

--
Phil Marti
Clarksburg, MD

<< ======================================================= >>
<< The foregoing was not intended or written to be used, >>
<< nor can it used, for the purpose of avoiding penalties >>
<< that may be imposed upon the taxpayer. >>
<< >>
<< The Charter and the Guidelines for submitting posts >>
<< to this newsgroup as well as our anti-spamming policy >>
<< are at www.asktax.org. >>
<< Copyright (2006) - All rights reserved. >>
<< ======================================================= >>

Posted by Nan, EA in LA on February 13, 2007, 1:30 am
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thomas...@gmail.com wrote:

> Here's the deal. My son's mother is on disability and does
> not work or produce an income (although I do pay her child
> support). Her boyfriend lives with her, in her house, and
> he does work. He has no legal rights to my son at all. My
> son lives with me 3 days a week. She told me that her
> boyfriend claimed my son on his tax return for 2006. All
> the info I can find at the IRS website says that since 2005,
> a person cannot claim a child that is not their own, or you
> have to be a blood relative, which he is not. I also found
> info supporting that he cannot file as head of household
> (posted below). My question is, how in the world could
> someone legally claim a child that is not their own? If
> they filed joinly would that make a difference? This
> doesn't seem right, but apparently whoever did their taxes
> for them let them do it. Should I call the IRS and report
> it? Please help!
>
> Info about Head of Household Status
>
> Take the situation of an unmarried man living with his
> unemployed girlfriend and her young child. The family of
> three lives solely on his earned income.
>
> In 2004, the man could claim his girlfriend and her child
> both as his dependents and file his return as a head of
> household, resulting in lower taxes. But for 2005, he may
> not use the child to claim head-of- household status because
> he and the child are not blood related.
>
> Formerly, the primary test was the support test. The the
> man was eligible to file as head-of-household because he
> supported a child living in his household.
>
> Now the primary test is the relationship test, and he would
> fail that because he and the child are not related. And
> since the mother is not employed, and therefore does not
> file income tax returns, no one can claim this child as a
> dependent -- not even the person who provides 100 percent of
> the child's financial support.

The first of the five rules for claiming a dependent is:
RELATIVE or MEMBER OF THE HOUSEHOLD FOR ALL YEAR.
I don't remember that being repealed.
Therefore, an unrelated person can be claimed as a dependent
if the other 4 rules are met.

Nan, EA in LA

<< ======================================================= >>
<< The foregoing was not intended or written to be used, >>
<< nor can it used, for the purpose of avoiding penalties >>
<< that may be imposed upon the taxpayer. >>
<< >>
<< The Charter and the Guidelines for submitting posts >>
<< to this newsgroup as well as our anti-spamming policy >>
<< are at www.asktax.org. >>
<< Copyright (2006) - All rights reserved. >>
<< ======================================================= >>

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