Discussion:Qualifying child of 2 or more persons

From TaxAlmanac, A Free Online Resource for Tax Professionals
Note: You are using this website at your own risk, subject to our Disclaimer and Website Use and Contribution Terms.

From TaxAlmanac

Jump to: navigation, search

Discussion Forum Index --> Advanced Tax Questions --> Qualifying child of 2 or more persons


Discussion Forum Index --> Tax Questions --> Qualifying child of 2 or more persons

GTSEA09 (talk|edits) said:

13 February 2012
If two or more person have the same qualifying child and they both agree that one will claim the child and one will not do they still have to follow the tie breaking rules? It seems to indicate that the tie breaking rules only apply if both try to claim the child. Then the IRS will apply the tie breaking rules. But what if they don't both claim the child. Do they still have to follow the tie breaking rules? Form 8867 seems to indicate that they do. But then I read other instructions and examples and it seems to indicate if there is an agreement between the two of the people that one will claim and one will not than the tie breaking rules do not apply.

Here is my scenario: Mom and Dad not married. They have two children under 17. Mom is not working and in college. Dad makes about 50,000. He has highest AGI. Uncle also lived in the same house all year. Uncle's income is about 12,000. Uncle and Dad both have the same qualifying children. If they agree that Uncle will claim the children will the IRS accept that? And if yes how would you explain that to them? Would you attach a statement? Or do they have to apply the tie breaking rules and only the Father could claim the children but he can't get EIC because his income is to high but he would claim kids as his dependents?

Thanks! GTSEA09

Tax Writer (talk|edits) said:

13 February 2012
The tie breaker rules only apply if the taxpayers cannot agree. There's tons of examples in the pubs that describe your scenario above (I remember one with a grandmother). If they all live together, and the child doesn't provide it's own support, then the child could be the qualifying child of any of the adults. But they must agree. No statement is required, but make sure you document the scenario in your own workpapers.

Tax Writer (talk|edits) said:

13 February 2012
FYI, it sounds like only the father is HOH, Based on the income disparity,so the uncle's filing status should probably be "SINGLE"

Newby (talk|edits) said:

13 February 2012
Read Pub-501. I disagree with taxwriter on "the child could be the qualifying any of the adults" there is a support test which the uncle would probably not meet. Also, the child has to live with him, which implies he is the individual maintaining a home, which I doubt.

Tax Writer (talk|edits) said:

13 February 2012
The support test for a qualifying child is that the child cannot provide over 1/2 of his own support. This is not the same test as for a qualifying relative. Since the uncle and a nephew pass the relationship test, I don't see a problem here, according to current IRC rules.

Rupert (talk|edits) said:

13 February 2012
Newby - I disagree with your statements.

You wrote: there is a support test which the uncle would probably not meet

The support test for a qualifying child only requires that the child not provide over half of child's own support.

152(c)(1)(D) who has not provided over one-half of such individual's own support for the calendar year in which the taxable year of the taxpayer begins, and


You wrote: Also, the child has to live with him, which implies he is the individual maintaining a home, which I doubt

Where did you get this? I don't see anything in the IRC that implies uncle must maintain the home.

152(c)(1)(B) who has the same principal place of abode as the taxpayer for more than one-half of such taxable year,

CathysTaxes (talk|edits) said:

13 February 2012
Personally, I would not even attempt to try to make a case for the uncle to claim the child because it is for EIC.

Tax Writer (talk|edits) said:

13 February 2012
I am not advocating anything, I am just stating the facts. I don't see anything illegal or even unethical about providing the lowest tax liability as long as it is within the law. Not only is what I am discussing legal, it is not agressive or a questionable position.

I know that people get bent out of shape when EITC comes into play, but if Congress wants to keep "fixing" the IRC, then we are going to continue to have scenarios like this. Our elected idiots make these rules, and our job is to get our clients to the lowest legal amount of tax.

MilTaxEA (talk|edits) said:

13 February 2012
What about the requirement that the non-parent claiming a child must have an AGI higher than any parent that could but does not claim the child?

Ddoshan (talk|edits) said:

13 February 2012
Agree with above post. Uncle can't claim child as his income is not higher than Dad's.

CathysTaxes (talk|edits) said:

14 February 2012
Let's take a look at page 30 of Pub 17. Example 2.

Child lives with mother and grandmother for the entire year. Child is 3. Mother's AGI is $18,000 and grandmother's AGI is $15,000. Because the grandmother's AGI is not hire than the mother's, then grandmother can't claim the child.

Now replace mother with father and grandmother with uncle. Uncle cannot claim child based on this example.

Newby (talk|edits) said:

14 February 2012
I agree I was in error with the support test. I have not dealt with these issues in many years, my practice is exclusively older T/Ps.

However, in reveiwing the rules I used the Tax assistant on the IRS web site to test dependents, using these facts, and it stated the father would be the only one qualified to claim the child as a dependewnt, because the tie breaker rules must be applied.

To join in on this discussion, you must first log in.
Personal tools