dependents claimed by boyfriend

[Bettie Cheek]

client lives with her boyfriend and is self employed with $3,000 income or less. She wants to let the boyfriend claim her kids as dependents. He provides the home and over 50% of their expenses. The tax book chart 3-15 to me says ok under the qualifying relative since they lived with him all year. However the example on page 3-16 says no to the claim. Thanks for your help

[Bees Knees]

The chart on page 3-15 also says no under qualifying relative rule. Look at number 5. Since the kid is a qualifying child of the mother, the kid cannot be a qualifying relative of the boyfriend.

[Bird Legs]

The view

from where I am sitting is that unless they are his children he cannot claim them as
dependents.
Are the children his or is the father someone else?
If children by someone else then he cannot claim them.
If they were placed there by a court then that would be a different matter.
From what I read from your post, the children are dependents of their mother.
Maybe he could claim the mother as his dependent if she lived their all year and
he supported her.
You do have to remember that my view is quite clouded at this moment.

[jainen]

he is not the client

I have no problem with this scenario, which may surprise those of you who have read my previous arguments against it. The difference here is that the client is the mother. She is not required to take the exemption even if she is entitled to it. I am not concerned with the boyfriend's claim since he is not the client.

[Brian EA]

Florida does not recognize common law relationships. Therefore he cannot claim any of them. His only filing status is single.

[Unregistered]

he can only claim them as dependents,

not QC, right? He could not qualify for HOH with the kids either, but if he claimed the girlfriend he could claim HOH based on her exemption. However, if the state in which they live has a law against cohabitation that would not be an option.

If I have missed something, please let me know for future reference.

[skhyatt]

Can't claim

The boyfriend cannot claim the kids as they would be QC of the Mother.

[Unregistered]

HoH

but if he claimed the girlfriend he could claim HOH based on her exemption.

He can not claim HoH with her, read the footnote for HoH. she does not qualify him for HoH.

[Unregistered]

don't have my TTB in front of me

that's the problem with being so hooked on this board that you post from home, you lose the ability to research your answers.

[Brian EA]

Here's the bottom line.
Some States will allow him to claim the girl as a qualifying relative, however he cannot claim the girlfriends son because the son is the the qualifying child of the girlfriend.

His only filing status is single. The girlfriend filing status is also single because she did not provide more than 50% support.She will however claim her son as a dependent and subsequently qualify for the EIC.

If they live in Florida he cannot claim her as a dependent

[Koss]

Girlfriend as dependent

I've posted many, many times on this issue. For now, I'll only try to address the question of whether he can claim his girlfriend as a dependent. This is something I haven't discussed this year on this board.

If her income is under $3200, and she lived with him all year, and he supported her, then she meets all the criteria under federal tax law to be his qualifying relative. A couple of posts have made comments about Florida state law, one one person said that "Florida does not recognize common law relationships."

That doesn't matter. Under federal tax law, for qualifying relative, there is no requirement for any type of relationship at all if the person lived in the taxpayer's household all year.

The only coherent argument on this issue is an assertion that the relationship violates local law. And that's pretty hard to do. I would love to see a court case on this question, but I don't think it's ever been tested.

I've read the Florida statute, and it's ridiculous. The claim is that Florida somehow prohibits cohabitation by an unmarried couple. The statute uses terms such as lewd and lascivious conduct. These terms are overly broad and unduly vague. The law is unconstitutional. It is as unconstitutional as the Texas sodomy law that was struck down by the US Supreme Court. Among other things, a law purporting to outlaw cohabitation of two unmarried consenting adults violates the right to freedom of association, and it violates the right to privacy.

Assuming arguendo that Florida does somehow prohibit cohabitation, and assuming futher that the law is not unconstitutional, how does the tax pro know whether the relationship violates local law?

Do you ask the client if he has a sexual relationship with his girlfriend?

Or do you assume that he does, based on your understanding of the word girlfriend?

If you really believe that Florida state law prevents the guy from claiming a dependent exemption for the woman he is living with, then due diligence and proper client advocacy require that you:

(a) explain to the client your understanding and interpretation of the Florida state law on cohabitation and the federal tax law on dependent qualifying relatives, and

(b) ask probing questions about the nature of the client's relationship with his/her significant other, in order to determine if the relationship violates local law.

If you do (a) first, I think I can accurately predict how the client will answer the questions that you ask in (b).

Burton

[jainen]

beyond the scope of our practice

>>explain to the client your understanding and interpretation of the Florida state law on cohabitation<<

That would constitute practicing law without a license, in my opinion. Although we may apply tax law to our client's circumstances, the criminal statutes are beyond the scope of our practice.

[ecb34691]

I explain and tell them the IRS may disallow and let them make the choice.

[Koss]

Practicing law?

>>explain to the client your understanding and interpretation of the Florida state law on cohabitation<<

That would constitute practicing law without a license, in my opinion. Although we may apply tax law to our client's circumstances, the criminal statutes are beyond the scope of our practice.

Jainen, you may be right. But the federal tax law drags the state law into it by stating that the relationship between a taxpayer and a qualifying relative cannot violate local law. I don't think it's practicing law to interpret the state statute insofar as it relates to federal tax law.

That being said...

If we cannot offer clients any type of opinion or interpretation of a state law on cohabitation, then we should not refuse to allow a client to claim a girlfriend as a dependent on the basis of a state law that supposedly outlaws cohabitation.

If the tax pro is not qualified to interpret or apply state statutes of this type, then the only thing the tax pro could do is ask the client, "Does your relationship with Jennifer violate any local laws?"

If we can't interpret the law, then we have to let the client decide for himself.

Burton

[Unregistrd]

Dependent only

To the best of my knowledge he can claim for Dependent only!

She is the only one (unless he is related to the kids) can claim for EIC!

Problem is they have to live with her 7 months of year so he must claim less!

Unless there is a state law that forbids there "shared living quarters"!

Makes you wonder if the IRS thinks everyone that is living together is TOGETHER!
or would they prefer she / kids on street or Government Assistance!
It does take more that you get from dependent or even EIC for you to take care of a kid properly (unless you feed them table scraps / and Hand me down cloths!)