Can my Son's Mother's boyfriend claim my son on his tax return?

snipped-for-privacy@gmail.com wrote:

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

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 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

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.

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

Alas H&R Block is giving legal opinions. LoL But why not, we all do that from time to time. And many times our opinions are as wrong as the opinion you report.

Here is what's wrong with that opinion. A common-law marriage requires a 'present-tense' mutual agreement to be married. When unmarried people file a joint return, it does NOT necessarily make them married even in a common-law state. The IRS went after a man in Utah over exactly what is being proposed here and it was not over a lot of money.

Being shacked-up long-term in a common-law state also does not necessarily make one married. You must have acted in a manner consistent with being married and have witnesses to your past actions.

Dick

I was about to say that couldn't be the case

Ah, must be one of those common-law marriage states. If two people cohabit and tell someone (not necessary to be everyone) that they are married, they become married. Well, I suppose that would work.

Stu

First off, they can't file a federal joint tax return unless they are married. State law determines whether they are married. I don't know what state they are in. In the few states that still maintain common law marriage on their books, it is not legal to file a joint tax return unless the couple has a common law marriage. Merely filing a joint tax return does not make you married. It is merely one fact in a long list of facts and circumstances that determine whether one has a common law marriage. The following states are the only ones that have common law marriage on the books: Alabama, Colorado, Georgia (if created before 1/1/97), Idaho (if created before 1/1/96), Iowa, Kansas, Montana, Ohio (if created before 10/10/91), Oklahoma (possibly if created before

11/1/98), Pennsylvania (if created before 1/1/05), Rhode Island, South Carolina, Texas, Utah and Washington, D.C.

If they are not residents of one of the above states, then the only way they can be legally married is if the had a valid marriage ceremony and the marriage was duly recorded.

-- Alan

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.

the >> man was eligible to file as head-of-household because he >> supported a child living in his household.

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.

But with the new rules for Uniform Definition of Child for tax year 2005+, if an unrelated child is a qualifying child of another person, you can't claim him as your dependent, even if he meets all 5 of the requirements.

"Stuart A. Bronstein" wrote

Makes you wonder if uttering the word "Shamalatarama" in your sleep three times makes you unmarried.

-- Paul Thomas, CPA snipped-for-privacy@bellsouth.net

Are you sure of that? I seem to recall that if a couple establishes a valid common-law marriage and then moves to another state, the marriage is recognized even though they couldn't create a common-law marriage in the new state.

-- Phil Marti Clarksburg, MD

The only common law state I've studied the law of is Texas. Under their laws (not strictly common law - they've codified it as "informal marriage") if the couple lives together (there is no minimum time period), the simple act of filing a joint return could cause them to be instantly married.

Exactly.

Stu

The rule in Texas is that they need three things:

1. Cohabitation
2. Holding out as married
3. Present intent to be married.

The courts there have mostly written out the final requirement, saying that if the couple hold themselves out as married (to someone, it need not be to everyone) that is evidence of their present intent to be married, and all the evidence required.

Exactly. There is also no common law divorce. That is to say that if you become married under the common law, you can't get divorced merely by moving out. Stu

It's 'the present intent to be married' that's a killer.

Holding out is the equivalent of 'present intent', but it's a matter of both parties holding out in the same time frame. Signing a joint return would be 'holding out' in 2007. But they would need witnesses for a 2006 'holding out'.

There was a case in Texas when I still had access to Lexus/Nexus. A coupla lived together for eight years and then she came into a million dollar plus inheritance and took a walk. He filed for divorce and produced witnesses who said he constantly refered to her as his wife as well as hotel records where he signed in as Mr. & Mrs. Her attorney produced her tax returns (single) and their leases where the landlord noted 'an unmarried couple'. She won because they never held out together.

Going back to the original point: Signing a 2006 tax return in 2007, does not make you married in 2006.

Ah, but! Marriages performed by a Bell Captain terminate when you check out of the hotel.

Dick

My reply was limited to establishing a common law marriage. The states I mentioned are the only ones where one can establish such a marriage. Once the marriage is created only a divorce can end it. In addition, each of the other states will recognize that marriage.

-- Alan

Once they're married, they're married. It doesn't matter where they move to. But they had to have at least driven through one of the common law states and spent the night. Stu

That exact scenario might make them married under Texas law, but it would be a fraudulent return. In order to file a joint return they must have been legally married on December

2. -- Phil Marti Clarksburg, MD

Excellent point. I hadn't thought of that.

Yes, yes, I agree with that.

Now that you mention it, that does ring a bell.

Stu