Guardianship and dependents

[cathe]

Here we go again. My tax client and his girlfriend have now gotten guardianship over her nephews and nieces living his home. Does the guardianship allow him to claim the kids as his dependents? Can't find anything on guardianship that doesn't apply directly to adoption.

Cathe

[S T]

Were they awarded "legal guardianship" either through the Court or Child Protective Services?

Sandy

[oceanlovin'ea]

I would think that this would affect 2012's tax return but not 2011. In 2011 they didn't have legal guardianship of the kids.

But if his name is on the paperwork too and he makes more money than she does, then he would probably be the one to claim them.

Linda, EA

[S T]

Well we don't have dates for either 2011 or 2012 - so outside of the first protocol of "Legal Guardanship" then we look to the "Qualifying" factors of support, residency, etc.

This is not easy to qualify, but can be done, depending on the "legal status of guardianship" and then the IRS "qualifing dependent rules"

Sandy

[appelman]

Can anyone produce a cite?

I can't seem to find anything discussing a guardianship involving unrelated persons.

[Gary2]

I can't seem to find anything discussing a guardianship involving unrelated persons.

The definition of "foster child" is sufficiently general to include a guardianship that involves custody. To be precise, 152(f)(1)(C) defines "Eligible foster child" as "placed with the taxpayer by an authorized placement agency or by ... court of competent jurisdiction." There's no reference or requirement that the placement be called a "foster" arrangement by the state.

Guardianship, by itself, doesn't necessarily imply placement. Indeed, in the traditional foster parent arrangement, the state may maintain guardianship. But when guardianship includes the expectation of the child living with the guardian, then I haven't found anything that would disallow treatment as a foster child for the purpose of the dependency tests.

On the other hand, it does seem rather unusual that guardianship would be handed jointly to a relative and her unrelated boyfriend.

[cathe]

More questions to ask. Thanks to all of you.

Cathe