I received numerous phone calls during March and April of this year from people with the same question:
“If my ex-wife or ex-husband or father or mother of our child claimed our child as a dependent on their tax return (and they should not have), can I still claim the child on my return? If I do, will I get audited?”
Like most answers to questions posed to an attorney, the answer is, “maybe.”
Regardless of whether someone else claimed your child on his or her tax return, you must determine whether you are entitled to claim that child. If the child is your “qualifying child” (as defined by the Internal Revenue Code), then yes, you may claim that child as a dependent. Your right to claim the child does not disappear merely because someone else erroneously claimed the child on their return. You should discuss the particular facts of your situation with a tax professional to determine whether your son or daughter is a “qualified child.”
Will you get audited? No doubt it’s every tax-preparer’s dream to be able to answer this question with any certainty! If someone figures out the IRS’ algorithm for choosing returns for audit, the demand for their services will be overwhelming. But until then, the answer is a highly probably “maybe.” The reason why the chance your return will be audited is high is that the problem can easily be picked up electronically. If two people claim the same child on their return, the child’s social security number will appear on both returns. It is an easily identifiable red flag. Thus, even though you don’t know whether you will be audited, you should be prepared for it. Gather paperwork now (while you still have it) that reflects the amount of time that your child resided with you or the child’s other parent during the year. Helpful documents include school records, medical records, day planners, emails or other written communication, and photos, among countless other potential supporting documents.
Whether it be for an audit or a camping trip…
“Be Prepared… the meaning of the motto is that [everyone!] must prepare himself by previous thinking out and practicing how to act on any accident or emergency [i.e., an audit…] so that he is never taken by surprise.” Robert Baden-Powell