My wife and I became legal gaurdians of my neice in August but got a temp. restraing order against the mother in July. That is the only documented proof of having her in our custody. She actually has lived with us since January though. Her mother lived on and off with us between January through July. The custody papers state she has been with us since birth which the mother signed. Would I be able to claim her as a dependant on our tax return? Thanks in advance.
Here's what will happen.
You look at the rules and see that for child born in 2008, you have to have had her living with you for more than 6 months in 2009. (if the child was born in 2009, you need to show the same 6 months or her entire life if born after June.)
You decide you meet the tests and list her, claiming the exemption, child tax credit and EIC. This changes your return by $0 to $xxx.
The IRS sees the word "Niece" (or a duplicate claim from the mother) and freeze that part of the refund. They ask for proof that the child lived with you. You produce the custody paper signed by the mother (was this a court document or just a letter she signed), the restraining order and the legal custody papers. Is there *anything* else you can send like social records, school papers, medical records, rental lease where you added her as another tenant?
The IRS has to make a decision. The more you give them, the more likely the are to accept it.
This child lived with you more than half of the year and had no income of it's own. You can claim the child. The mother may also attempt to do so therefore you should be prepared to defend your position with as much evidence as possible concerning the fact that the child lived in your home or a home provided by the mother.
as a qualifying child, and you have documentation that you are guardians that should be no problem
even at that she could be a qualifying relative, having lived with you the ENTIRE YEAR, you have supported her and she has no income and is not being claimed by anyone else
Sounds like you can legally claim her - she lived with you over half the year. I'd go ahead and claim her. If the IRS asks for documentation, show them what you have - you might also have to come up with things like medical records.
Claim her. The dispute (if it comes up) will likely center on testimony of witness as to where she was in residence. Unless her mother can come up with something really good, you shouldn't have any problems.
The requirement is that your niece must have lived with you for the entire year. If you have legal guardianship for her in august, that does not qualify you outright. You stated that she has been living with you since January. If she moved in with you after January 1, you cannot claim her. The other issue here is will your niece's mother try to claim her on her return. If you both do, it will trigger audits on both of you.
Talk to a CPA regarding this. The fee for doing so ($100 - $400) is worth it to prevent massive headaches and trouble down the road. Next year, though it should be smooth sailing.
Yes you would, as long as the mom does not do it FIRST. First one to file wins.