Tax Question?

Question

My divorce was final in March of 2006. Still legally married on Dec 31, 2005, my now ex-husband took it upon himself to file without me as head of household and claimed our son on his return. The divorce nor any of the stipulations as to who can claim what or whom were not finalized at the time he filed. I ended up having to file single and had to pay in while he got a rather large refund. My question is this, shouldn't you file according to what your status is on 12/31 of the tax year you are filing? If so, then is it possible to file an ammended return for that year and maybe receive a refund? If an ammended return can or should be filed, how do I go about doing that and what info do I need to include?

There was not stipulation on who could claim our son at the time of this filing. When the divorce did become final, in March of 2006, he was given the right to claim the child.
After having to pay that year I had my deductions changed at work. When I filed in 2007 for year 2006, I was very glad I did that.

We lived together until October 15, 2005. I moved out and our son lived with him for the remainder of the year. I did file single 2005 and he filed head of household, claiming our son as a dependent. There will be no cooperation on his part to amend the return. I am going to amend my return to married filing seperately. If the IRS audits him and his return is inaccurate will I be held responsible for his errors/greediness?

Answer 1

There are a variety of problems and possible problems with what has been done here. You don't give quite enough info to tell just what should have been done.

Since you were still legally married at the end of 2005, then filing your return as single was incorrect/illegal. If you were not eligible to file as head of household, then you would have had to file as married filing separately. So yes, you should amend your 2005 return, but it's not going to give you a refund.

You don't say who your son lived with, or when you separated. If you lived together at any time after June 30, 2005, then your ex could not legally file as head of household either for that year - and if your son didn't live with him for over half the year, he was not allowed to file as head of household and would have to amend HIS return also.

It is also possible for you and your ex to file a joint return for 2005 if you can agree on it - and you can amend the two filings into a joint return. If your ex claimed your son and claimed head of household but was not entitled to, it's very possible that much of his "rather large refund" will have to be paid back.

If you didn't live together any time after 6/30/05, and your son lived with your ex over half the year, then his filing was probably OK, although yours still needs to be amended.

If your son lived with YOU over half of 2005, and you and your ex didn't live together after 6/30/05, and there were no legal papers saying that he could claim your son, then YOU could amend your return claiming your son and filing as head of household. It would take awhile for the IRS to sort this all out, but you'd most likely end up with a refund.

Finally, if your son lives with you even if your ex has the right to claim the exemption for him (not just talking about 2005 now, but also for 2006 and future years), you can claim head of household and he can't. If your son lives with your ex, then he's the one who can claim head of household.

Answer 2

The correct answer really depends on some additional facts that you did not state.

1. Who did your son live with?

2. Did you and your husband live apart for the last half of the year?

3. Did you file "Single" or "Married filing seperately"?

You generally have to file based on your status at year end. The exception in your situation is if the married couple was living apart for the last half of the year, the one providing the home for your son can legally claim Head of Household.

I get into this situation somewhat regularly - you do not have to follow your ex's lead if he is filing an erroneous return. You just have to make sure you can present the facts to the IRS so that if questioned, they do not change your return. You can file an amended return, but the best result for you would probably be to file Married filing joint - this would require cooperation from your ex (and he may have to pay back some of his refund).

To file amendments to change the filing status, you will need copies of the original returns and a copy of the divorce decree.

You probably need some professional help to review your options.

Answer 3

There's not quite enough information to give you an exact answer.

For 2005 the exemption claim for your son goes to the custodial parent. The IRS defines the custodial parent as the one the child spent the most time with during the year. If your son spent more time with his father in 2005 than with you, his father gets to claim the exemption. That's cut and dried.

As to the HoH filing status: If you lived apart for all of the last half of 2005 and one of you paid more than half the cost of maintaining a home for the child and the child lived with that parent then that parent can file HoH. The other would have to file Married Filing Separately.

So, it comes down to a couple of determinations. Did you live apart for ALL of the last half of 2005? And, for 2005, which parent did the child spend the most time with?

One last caution, for 2006 and beyond. Federal law has very strict language that must be included in the divorce decree for the non-custodial parent to claim the child. If the decree doesn't meet the requirements set out in Federal law then the IRS is legally obligated to follow the law, not the decree.

See IRS Pub 501 for a full discussion of these issues. You can get a copy of the 2005 version here: http://www.irs.gov/pub/irs-prior/p501--2005.pdf

Answer 4

First of all the status is the status rules state you file as such based on your status at the end of the tax year but of course with the IRC (Internal Revenue Code) there is always exceptions. If couple meets them for example, even though married, you may file as head of household and if one spouse does so then the other must file as being single. The courts may make an order that says such and such gets the credit for child and the IRS could care less for example. Court orders apply to the divorce and not to the Government for example. Will the IRS uphold it well sure if you can show them proof. Who can take the child exemption. Well that depends on who provided the most of the support and if you did well I would say take it the rules are complex. Check them out. Remember the good Dr. Albert Einstein? Well he stated that the most complex thing there is is the income taxes. Was he right? Surely.

Go to http://www.irs.gov . or call up IRS 1800-829-1040 and ask them what the rules are. the up to date rules that is. IRS won't bite you (smiles)

Wayne Barney
President / Accountant
BC Business Services, Inc.

http://www.bcbsinc.com

Answer 5

If your son lived with your ex for 12 months and you for 10 months, he gets to claim your son. Since you lived together after July 1, 2005, neither of you can be HoH for 2005. You both would be Married Filing Separate for 2005. For 2006, since your son was with you longer, you'd qualify as HoH.

And no, since your signature is not on his return, you can't be held liable.

Answer 6

You both should have filed as married for 2005, and as single or HOH for 2006 (depending on the stipulations). Get form 1040X to file an amended return and follow the instructions. If your ex-husband is audited, and you have both claimed your son as a dependent, he will pay penalties if the divorce stipulates that you are the one who should have.

Answer 7

If you had not lived with him the last 6 months of 2005 (from July 1 on) if he paid for maintaining a home for himself and your son, then he can file as head of household. If not, then he should have filed married either jointly or separately.

The same goes for you. If your son lived with you and you maintained the home and lived apart from your husband, you could have filed as head of household.

You cannot file as single if you are still married.

For 2006 on, if your son lives with you and you maintain the home (even with child support), you can file as head of household even if your ex claims your son.

Answer 8

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Answer 9

Always consult a CPA for these matters, my CPA save me 35K in amended taxes returns

Answer 10

go to irs.gov to find ansers or phone contacts, who can help you with your situation