How far back can my ex go to amend his tax return and claim our daughter as a dependent?

Our 2000-2004 divorce stated we can alternate years claiming her even though I had full legal custody. At that time, father forfeited his right to claim giving me all the years. He stated he gave up the dependent deduction voluntarily in a recent hearing (2010) which I can show in transcripts. He has since appealed the 2010 decision that I won at that time stating she lived with him (she didn't). After the appeal, he won back child support for 2000-2004 (long story), but the tax issue was not addressed. He is now suing me for lost tax benefits as a result of not taking his alternate years as originally ordered by the court in 2000. Can he amend his taxes back to 2000-2004? If he does, can the IRS come after me for claiming her? What is the statute of limitations? Basically, he had the legal right to claim her, but didn't take it. Am I now responsible for that? Any answers greatly appreciated.


Thank you for your answers! Original judgment (2000) allowed for us to each claim her as a dependent alternating years. After the appeal (2012), court determined daughter lived with father majority of time from 2000-2004 but did not address the tax issue. If court does not award him money for the back tax deductions, can he amend his taxes without form 8332?

Again, thank you for your answers - very helpful.

9 Answers

  • Best Answer

    Tax years 2009 and earlier are closed for refunds. Only 2010 - 2012 remain open.

    A few observations:

    The custodial parent gets the exemption and all tax benefits. Federal law defines the custodial parent as the one that the child lived with for the majority of the year. Legal custody is meaningless. Add up the nights in each home; the most nights wins.

    Pre 2009 decrees awarding the exemption and Child Tax Credit to the non-custodial parent will be honored by the IRS if they meet strict standards. They must clearly state which parent can claim which child in which year. They must place no preconditions on the award of the exemption such as being current on child support or meeting visitation requirements. If your original decree met the federal standards, it was up to the NCP to attach copies of the relevant pages to his ORIGINAL return and claim the child. If he failed to do so, he loses and has no recourse against anyone. (If he was the custodial parent and failed to claim the child, again that's his fault and he loses.)

    Although unrelated to your situation, post 2008 decrees are ignored by the IRS, by law. A court CAN direct the CP to provide the NCP a completed Form 8332 that the NCP must attach to his ORIGINAL return to claim the exemption and Child Tax Credit. However that's under penalty of a contempt of court citation; the IRS must deny the exemption claim without it.

    Edit: No, he cannot amend any return prior to 2010 as those are all closed for refunds now. Nor will the IRS accept an amended return from 2010 - 2012 with a Form 8332 attached. Form 8332 must be attached to the ORIGINAL return as previously noted. The specific wording of the Tax Code states that the 8332 must be attached to a "tax return." A tax return is Form 1040 or 1040-A (you can't claim dependents on 1040-EZ). Form 1040-X is an amended return, not a "tax return" in this context and that's the rationale that the IRS uses when they refuse to honor it.

  • 7 years ago

    Tax years 2000 - 2004 are long since closed. He cannot amend those years now. State courts have no authority over federal agencies which is probably why the court didn't address the matter of taxes from prior years.

    The IRS only accepts Form 8332 with an original, timely tax return. An amended return with one attached is generally returned without action. That would only be relevant for tax years 2010 - 2012, the only years that are still open for refunds.

  • 7 years ago

    As far as the IRS is concerned, you have no responsibility. You were the parent with primary custody and you (presumably) did not give your ex a signed Form 8332 releasing your daughter's exemption to your ex. He may be able to pursue a claim through the state courts, but the IRS will stay out of it.

    Edit: You only have three years from the original filing deadline, as extended, to amend a return and receive an additional refund. It is far too late for the father to amend his 2000-2004 returns and receive any additional refund.

  • tro
    Lv 7
    7 years ago

    for a 2010 tax return an amendment would need to be filed by 4/15/2014 to be able to get any refund, anything prior to that is long lost

    and the rule for IRS is the parent with whom the children spend the majority 'nites' with is the parent to claim the child on their tax return- you may have some personal arrangement but to qualify for taxes that is the rule

    you can sign the #8332 waiver any year you chose to allow the other parent to claim the child if you are the qualifying one, this will allow them only the personal exemption, not child tax credit, not EIC etc.

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  • 7 years ago

    He can amend back to the year he was born. (Obviously, he cannot claim the daughter for years before she was born.) There is not time limit on filing the amendment.

    However, he cannot get any money from the IRS for 2000-2004. To get money from the IRS, there is a time limit of three years after the date that the tax return was originally due. After this time, he can still amend, but the IRS won't send him any money.

    Even if he does not amend, the IRS can go after you for claiming her, but they probably won't.

  • 3 years ago

    If anyone tells you to act like you're happy without her, don't. If you want her back you need to grovel.

    Read here

    Do something romantic. Nobody does that anymore. Leave flowers at her door. Write her a letter, and put it in her mailbox or with the flowers or something.

    If you really love her that much, get her back.

    I would say other than just pouring your heart out, all you can do is move on. But don't ignore her, don't put on a front... Or you will never have her back.

    No guarantee that grovelling will work, but if you really want her, and you're already unhappy what else could go wrong? You don't have anything to lose.

    I grovelled to a guy I loved. We were in so deep that we nearly hated each other. I grovelled so hard that I was crying. And we were together for maybe a week or two, and then he left town. Life's cruel.

    But you have to live the heck out of it. The things that you will remember are the things you pour your heart and soul into.

  • 7 years ago

    Only to 2010 and forward actually get a refund. Any refund for tax years 2009 and earlier is forfeit.

  • Anonymous
    4 years ago

    Want to know how to get your ex back? Change yourself. Don't worry about changing other people, worry about changing yourself. Go to

    Once you do that then you can start to worry about getting back together with your ex, other wise you will find that you are fighting about all the same things and getting no where. Do what it takes and I promise things will work out in your favor.

    The funny thing is I came to the realization that I had to change a little too late. After I was kicked out and after I was about to lose the only things that truly mattered to me - her love. A funny thing happens when we truly love someone and lose them. We do what ever it takes to get them back. For me I had to drop bad habits that had caused not only our relationship to sour but practically every other relationship I had had in the past. Not only with women, but with friends, co-workers, family, you name it.

    Which is why I say to you as my ex at the time said to me, the only thing you can do is change yourself. Work on yourself and improve on the person that you already are. Drop the negative things in your life that don't belong there and you will see all of your relationships start to take off to new heights.

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