Adoptive parents vs. birth parents

[Larmil]

I know this has discussed earlier but I can't find an answer to my question. Here is my problem.

Single mother gives up her child for adoption. Several years later the adoptive parents die and the child returns to live with her birth mother.
What is the relationship between the child and her birth mother?

[Possi]

legal one....

This sounds like a legal question. As far as taxes go, TTB 3-15 says the child will qualify as a "Qualifying Relative" if he/she lived with the taxpayer all year.

Then again, who (in the tax world) is going to argue that the child is legally Mom's or not? The adoptive parents don't care anymore, they are busy dancing with Jesus... and not claiming the child on their return.

As a mom, I'd want it to be legal in the eyes of the courts, though.

Anybody else?

[erchess]

Legal Question

I think the question of whether the biological mother is once again the legal mother of the child would depend on what a court says. A Family Lawyer in the state in question could tell us which way the court is likely to go.

The question of dependency however we can settle. The child can be the qualifying relative of the taxpayer and be listed as an "other dependent" on the return. This gives her the exemption and if itemizing the ability to claim the child's medical expenses. I think the child, dependent care and earned income credits are lost

[taxea]

First question is....is there any document that gives the child back to the mother on the death of the adopted parents? Has the mother gone to court for legal guardianship...at least? How did the child get back into mom's custody?

[New York Enrolled Agent]

I know this has discussed earlier but I can't find an answer to my question. Here is my problem.

Single mother gives up her child for adoption. Several years later the adoptive parents die and the child returns to live with her birth mother.
What is the relationship between the child and her birth mother?

It seems to me that under §152(f)(1)(A), the relationship never changed. The "youngster" is the child of the mother at birth and continues to be the child of the mother for all time.

The "youngster" became the child of the adopted parents under §152(f)(1)(B) and continued as such while the adoptive parents were alive.

Thus the "youngster" was the child of more than one taxpayer. The IRC has this separate definition for child which is applicable to both QC and QR definitions in §152(c) & (d).

Whether or not this "child" qualifies as a dependent for any taxpayer under QC or QR is an issue to be determined by facts and circumstances.

[taxdude71]

That's not right. Once a child is adopted, the birth mother loses all parental rights. They never revert back unless there is a court decsion.

This is the same thing as parent claiming son's girlfriend that lived with them all year. Yes, she may be a dependent, but that's it.

[Gretel]

Maybe there is a difference between local law and tax law.

After a divorce, a stepchild is still the qualifying child for tax purposes. Local law, like inheritance law, would cease to apply to such a relationship, right?

[PIGLEE]

When a child is adopted the birth certificate is changed, it is as if the birth parents never existed. I would say she needs to go to court and adopt her baby back, to be the legal mother again.

[taxea]

Taxdude is correct. Divorce and adoption are totally different. In a divorce the parent does not give up "parental rights". In an adoption they do.
Without going to court and regaining parental rights or at least legal guardianship this this "mother" does not have the legal authority to claim the dependent as her child.

[Larmil]

Taxdude is correct. Divorce and adoption are totally different. In a divorce the parent does not give up "parental rights". In an adoption they do.
Without going to court and regaining parental rights or at least legal guardianship this this "mother" does not have the legal authority to claim the dependent as her child.

I would like a citation please, but I believe you are correct.

[taxea]

Larmil....you will have to research adoption law vs. divorce law for that one.

[Larmil]

Larmil....you will have to research adoption law vs. divorce law for that one.

So ou say state law rules?

[New York Enrolled Agent]

Taxdude is correct. Divorce and adoption are totally different. In a divorce the parent does not give up "parental rights". In an adoption they do.
Without going to court and regaining parental rights or at least legal guardianship this this "mother" does not have the legal authority to claim the dependent as her child.

My responses to your posts are based on my years of training and experience

I would suggest that your years of training and experience do not trump the Internal Revenue Code. Can you or taxdude (who summarily said I was incorrect) point out to me exactly where in §152 of the Internal Revenue Code (titled Dependent Defined) "parental rights" are referenced in defining a dependent in either §152(c) or §152(d)? If I missed it somewhere in there I will be quick to admit my oversight. Please look it over for me.

Larmil - the Tax Court has ruled repeatedly that state law cannot over rule §152 in dependency issues. A common citation - "State courts, by their decisions, cannot determine issues of Federal tax law. Commissioner v. Tower, 327 U.S. 280 (1946);"

[taxea]

No, I am not saying state law rules. There is federal law that regulates what states must include in their adoption laws.