considered unmarried for Head of Household status

[POCAHONTAS]

client got married in 2018 but did not live with spouse the last 6 months out of the year. Can his sister qualify him for Head of Household. I have been told no because he was married at the end of the year and did not have a legal decree of separation he can only take his child, foster child or stepchild. Some taxpreparers say yes you can because table 4 in publication 501 says you can claim other relative for the purpose of Head of Household. And now I am confused? Which is it?
Thank you

[New York Enrolled Agent]

No - sister is no good

Must be son, daughter, stepson, stepdaughter or eligible foster child. See IRC 7703 which sends you to IRC 152(f)(1)

[terryats]

following are the filling status rules from the tax book " Married individuals considered unmarried. A married individual can be considered unmarried for HOH filing status purposes if all the following apply.

• The taxpayer lived apart from his or her spouse for the last six months of the year. Temporary absences for special circumstances, such as for business, medical care, school, or military service, count as time lived in the home.

• The taxpayer does not file a joint return with his or her spouse.

• The taxpayer paid over half the cost of keeping up the home during the year.

• The taxpayer’s home was the main home of the taxpayer’s child, stepchild, or foster child for more than half the year.

• The taxpayer claims this child as a dependent, or the child’s other parent claims him or her as a dependent under the rules for children of divorced or separated parents."

[TAXNJ]

See The Taxbook page 3-7

Head of Household (HOH)
also, See Filing Status Chart, page 3-8.

[New York Enrolled Agent]

He is still married, and can only be considered "unmarried" and claim HOH under very narrow circumstances as stated well by terryats.

OP might want to clarify for us: Is sister living in his house, or vice versa??

Why would that matter? He won’t qualify whether it’s one sister or ten sisters.

[Rapid Robert]

t ***IF*** he is living in his sister's home there is at least a (small) window of opportunity for --->>>HER<<<--- to use the HOH status.

I don't see how. Given the facts of the OP, his sister cannot claim him as a dependent because his gross income will be too high, let alone she most likely would not be providing over half of his support. I am assuming that someone old enough to be married and making enough money to even consider potentially being HOH is making more than the gross income test for a qualifying relative.

I did not see anything like a sneer in the prior response. The question was not about the sister as a taxpayer, so if you were going to switch the context, you might have at least explained your reason for even asking the question.

[TAXNJ]

I don't see how. Given the facts of the OP, his sister cannot claim him as a dependent because his gross income will be too high, let alone she most likely would not be providing over half of his support. I am assuming that someone old enough to be married and making enough money to even consider potentially being HOH is making more than the gross income test for a qualifying relative.

I did not see anything like a sneer in the prior response. The question was not about the sister as a taxpayer, so if you were going to switch the context, you might have at least explained your reason for even asking the question.

Think the Original Poster is satisfied with the reply posts since no further response from the Poster. However, think more detail would have helped this post.

Part of your reply mentions “Gross Income” as part of the “facts” in the post but cannot see it. Can you explain where it states the gross income? ......“Given the facts of the OP, his sister cannot claim him as a dependent because his gross income will be too high, let alone she most likely would not be providing over half of his support”....

Also, more detailed info from the Original Poster would have avoided any “assumptions” that may not have anything to do with the scenario.

[Rapid Robert]

TaxNJ, thank you for asking me if I "can explain".

I see FEDuke deleted their posts, and I was just about to move on. But it turns out TaxNJ's comment made me look up something I hadn't in a while, and while I still think it highly unlikely that the taxpayer in the OP could somehow be a dependent of his sister, it turns out it's not completely unrealistic. This is due in part to new tax law changes under TCJA.

About Gross Income, my reasoning was, a taxpayer either has a filing requirement, or they don't. If they don't have a filing requirement, then what would be the point of bringing up any question in the first place? Even if they do file, they would most likely owe no tax, although I suppose a tiny bit of refundable EIC might be in play. (Which is why they might want to achieve HOH status, since EIC is not available to MFS). But if they do have a filing requirement, then almost without exception, that implies their gross income would be at least $12,000. At this level (and assuming too old to be a QC), they could not possibly be a dependent of the sister, because of the gross income test for a QR.

However, when I went to TheTaxBook to look up filing requirements, I discovered that the gross income filing requirement for MFS is $5. THIS IS NEW. It used to be the standard exemption amount of $4,050 (same as the gross income test for a QR dependent).

So, the taxpayer in the OP might have gross income less than the $4K amount of the dependent test, but still be required to file if using MFS status. This is the new part I was not aware of. In this case, given that he would not be filing MFJ, he could still be a dependent of the sister and qualify her for HOH status if all the other tests are met. One of the reasons I still think this unlikely is it means with low income, the taxpayer, to even consider being a HOH on his own, would have to be paying everything from some other source of non taxable funds, like savings. Possible, but again I don't think likely.