What If Someone Else Claimed Your Child as a Dependent?

The IRS Has Special Tiebreaker Rules

What to know about the IRS' tiebreaker rules Dependency exemption almost always goes to the parent who is given legal custody of the child by court order Assuming the child did somehow manage to spend exactly the same amount of time in each parent's home during the tax year, dependency exemption goes to the parent with the highest adjusted gross income If granted dependency exemption, file a tax return listing the correct dependents To prep for the subsequent audit, gather any records indicating that your child lived with you and when, like school and medical records

Image by Julie Bang © The Balance 2020

It seems pretty simple on the surface. You have a child, they live with you at least some of the time, so they're your dependent at tax time, right? Not exactly. Actually, it isn't that simple—few tax issues are.

You certainly wouldn't be the first parent—and you won't be the last—to claim a child as your dependent only to find out that your ex has already done so. It happens often enough that the Internal Revenue Service has a special set of "tiebreaker" rules to help you determine who actually has the right to a dependency exemption. Here's what you need to know and what you can expect if it happens to you.

The Tiebreaker Rules 

This is a common occurrence between divorced parents who may not understand or know the claim requirements. In this case, the IRS says that the parent who can claim a child is the one who meets the following criteria.

First, the claim goes to the parent whom the child lived with the most. This generally means that the dependency exemption almost always goes to the custodial parent (the parent who is given legal custody of the child by court order).

Assuming the child did spend exactly the same amount of time in each parent's home during the tax year—or maybe the parents live together but can't or don't file a joint married return—the tiebreaker rules give the dependency exemption to the parent with the highest adjusted gross income.

If someone besides a parent is trying to claim your child, they're out of luck. A parent always has the first right to claim their child as a dependent if they are able to do so. The IRS gives a detailed explanation of circumstances under which neither parent might be able to claim their child in Publication 504. It's rare, but it does occasionally happen.

Does Claiming Your Child Affect Your Tax Situation?

Claiming your child as a dependent does affect your taxes; it can save you some money, as long as you meet certain requirements.

The passage of the Tax Cuts and Jobs Act of 2017 (TCJA) changed a parent's ability to claim a child as a dependent starting in 2018. The TCJA eliminates personal exemptions (the exemptions for you and your dependents) for tax years 2018 through 2025. There's a chance that you're fighting for the right to claim something that will not affect your return. But it's a chance.

Most of the Tax Cuts and Jobs Act individual income tax provisions expire in 2025. This means that Congress may or may not re-introduce personal exemptions.

If you and your ex are both trying to claim a child as a dependent, it will trigger an IRS audit to determine who gets to claim the child, using the tiebreaker rules.

Claiming a dependent can qualify you for several tax credits and tax deductions. It can affect your filing status, which can create other tax reductions, but you must have a dependent to qualify.

What if you're not eligible for any of these things, but your ex is? In this case, letting them claim your child as a dependent gives them a tax break and has no effect on you.

If you are the custodial parent, you can give the noncustodial parent the right to claim your child via Form 8332. You should submit this form for every year that you plan to relinquish the exemption claim.

You can resubmit the form to revoke the release if you change your mind. This is a personal decision between parents and could cause problems down the road if you and your ex cease communicating about it. Be sure to notify your ex if you plan on revoking the release, to avoid audits or fights that tax year.

Who Did It?

The IRS can't tell you who claimed your dependent because it's prohibited by Section 6103 of the Internal Revenue Code. The IRS can't disclose information relating to a tax return to anyone other than the filer. That said, you probably have a good idea of who claimed your child. The culprit would have to have the child's name, their Social Security number, and the date of birth. That narrows down the field.

But it isn't always the child's other parent who claims him. Maybe your ex and your child are living with another relative and that relative thinks they are entitled to claim them. Identify theft is a problem as well—someone may have stolen your child's Social Security number and is using that to steal money from the U.S. Treasury.

What to Do?

If your child has been claimed by someone else, and you've determined that you do indeed have the right to claim your child, the next step is to print out your tax return listing the correct dependents and file the return with the IRS.

You'll have to mail the return for manual processing because IRS computers are programmed to automatically reject e-filed returns when a dependent has already been claimed on another tax return.

Attempting to file electronically will only cause an unnecessary and additional delay in straightening the situation out.

The next step is to prepare yourself for an audit over the dependent. The IRS will audit both your tax return and the return of the other person. They will ask questions and seek documentation based on the eligibility criteria and the tiebreaker tests.

Gather any and all records indicating that your child lived with you and when. Ideally, you have a custody order or agreement detailing exactly when your child resides in your residence. School and medical records can also be helpful, as can any kind of journal, diary, or calendar that cites the days your child lived with you.

Having these records will go a long way toward winning the audit and protecting your refund. Remember, as far as the IRS is concerned, and according to its tiebreaker rules, it's all fairly simple. The more documentation you can gather to show that you meet these criteria, the better. The IRS will give the dependent deduction to whichever taxpayer meets the rules.

You should be aware of all your rights as a taxpayer, including your right to seek assistance from the Taxpayer Advocate Service. You may be eligible to receive free or low-cost representation from publicly funded tax clinics.

Article Sources

  1. Internal Revenue Service. "Qualifying Child of More Than One Person." Accessed April 21, 2020.

  2. Internal Revenue Service. "Publication 504 (2019): Divorced or Separated Individuals," Page 8. Accessed April 21, 2020.

  3. Internal Revenue Service. "Publication 504 (2019): Divorced or Separated Individuals," Page 9. Accessed April 21, 2020.

  4. Internal Revenue Service. "Be Tax Ready – Understanding Tax Reform Changes Affecting Individuals and Families." Accessed April 21, 2020.

  5. Internal Revenue Service. "Watch Out for These Common EITC Errors!" Accessed April 21, 2020.

  6. Internal Revenue Service. "Publication 501 (2019): Dependents, Standard Deduction, and Filing Information," Pages 8-9. Accessed April 21, 2020.

  7. Internal Revenue Service. "Form 8332: Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent," Page 1. Accessed April 21, 2020.

  8. Internal Revenue Service. "Form 8332: Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent," Page 2. Accessed April 21, 2020.

  9. U.S. Government Publishing Office. "Title 26 - Internal Revenue Code: § 6103(a), Confidentiality and Disclosure of Returns and Return Information," Pages 3158-3160. Accessed April 21, 2020.

  10. Internal Revenue Service. "Instructions for Requesting Copy of Fraudulent Returns." Accessed April 21, 2020.

  11. Internal Revenue Service. "Publication 501 (2019): Dependents, Standard Deduction, and Filing Information," Page 11. Accessed April 21, 2020.

  12. Internal Revenue Service. "What to Do When Someone Fraudulently Claims Your Dependent." Accessed April 21, 2020.