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Posted by thomasvr1 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.
> 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.
Thank you for your reply. After explaining the details of
this situation to my local H&R block office, they determined
that the only way that her boyfriend could've claimed my son
is if they filed together as married filing joinly. In my
state it is legal to do so even if you are not married,
however after you do that you BECOME MARRIED and are
required to file as married from there on out. If they
filed as married, then the IRS would think that my son is
his step-son, thereby making him a qualifying child. It's a
pretty scummy move, which follows along the lines of most of
the things those two do.
Thanks again for your reply.
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