EIC for 67 year old brother

[Snaggletooth]

Harvey Lucas

Harvey, did you ever DREAM of what a plethora of grey matter you unleashed when you started this thread?

I had to quit reading at some point. You can only hang on a cliff so long....

Best wishes - Snag

[Black Bart]

Dear Burt,

You make a good point. My claim that guardianship is almost equivalent to parenthood may be too strong. A guardian can petition the court to be removed as guardian, and most judges will quickly come to the conclusion that if the guy doesn't want this responsbility, then it probably it isn't in the best interest of the child to force it. So a guardian can terminate the relationship pretty easily--something that cannot be said about parenthood.



While some natural parents have been known to voluntarily "give up" their children if they feel they cannot care for them or meet their needs, I think that process is a lot more complicated than the termination of a guardianship. The natural parent, as you have pointed out, has certain rights and responsibilities that are not so easily alienated.

With that being said, you are actually strengthening my argument. But you knew that anyway...

I haven't exactly asserted that guardianship meets the definition of a foster child for purposes of UDC. I honestly don't have a particularly strong opinion one way or the other. I do have clients who are taking this position. And yes, I am signing the return as the preparer. I think it is a reasonable position. (My clients are taking this position with respect to young children over whom they have guardianship--not parents or elderly adults.)

My point is a bit more subtle. Custody, guardianship, and foster parenting, in the labyrinth of state laws, are complex structures and concepts. They are certainly different, but they may overlap in various ways. But the tax code has been structured in a way that is often meant to be binary branching. Everything--well, not everything, but a lot of the tax system--is ones and zeros. Either the child is a qualifying child or it isn't. Either you meet the relationship test or you don't. Either it's more than half or it isn't more than half. There is no in-between; you can't be a little bit pregnant. Everything in the world is either elephant or non-elephant.

Once you take the position that a guardianship of a child satisfies the relationship test for purposes of a qualifying child, it appears to be a logical consequence that a guardianship over a disabled adult would also satisfy the relationship test. And the disabled status then eliminates the age limit.

One might argue that you are "begging the question." That is, the guardianship of a disabled adult arose because of the adult's disability, and that such a guardianship should not be interepreted in the same way as the guardianship of a child.

The problem with this argument is that would invalidate the guardianship of the child as well. The guardianship of the child arises because the child is too young to take care of himself.

The reasoning is a bit circular in both cases. Guardianship supposedly establishes the relationship that is required for a qualifying child--something that is somehow equivalent to a foster child. But the guardianship exists, by definition, for one of two reasons--either because the person is a minor, or because the person is an adult who is so disabled that they cannot take care of themselves.

So the guardianship, which creates a legal relationship that meets the QC relationship test, comes into being because the age/disability test is met.

I have one client who is the classic unmarried couple living together, and he has been appointed guardian of her child. So it is almost as if we are arguing that the foster parent relationship arises out of the facts and circumstances, and that the IRS will accept the existence of this relationship if it is recognized by the probate court in the form of a guardianship.

If this is so, then it follows logically that the same relationship could exist between a taxpayer and an incompetent 66-year old. And I don't see how it would make a difference if the 66-year old just happened to be the taxpayer's parent.

Burton M. Koss

Like Wordsworth, I'm trying to "find strength in what remains behind," but I'm not quite sure just what does remain after these posts.

Thanks very much for your exhaustive research and best of luck to you in case you go to court with this, but in the meantime, asking for myself (I don't know if I can speak for Harvey or not) -- was that a "yes" or a "no"?

[Brad Imsdahl]

Burton, I think you are over analyzing everything. It doesn’t have to be this difficult.

TTB, page 3-18, “Foster Child. A foster child is any child placed with the taxpayer by an authorized placement agency or by judgment, decree, or other order of any court of competent jurisdiction.”

Why would that not include a guardianship order by a court?

Basically, any court order that would place someone in someone’s home where the ultimate outcome is for the purpose of being supported, makes that person a qualifying child for tax purposes. This debate doesn’t have to get into technical legal issues.

If the boyfriend is supporting his girlfriend and her child, he has several choices:

1) Marry his girlfriend.
2) Adopt his girlfriend’s child.
3) Sign up as a foster care parent and have the agency officially place the child into his custody.

What is so difficult about that? Why do we even care?

If he is too lazy and too irresponsible to do the decent thing, why should I care that he can’t get EIC or HOH or dependency exemption?

I am actually getting irritated at all this whining about how girlfriend boyfriend households are losing all these tax benefits. I really couldn't care less. I promised my wife 25 years ago to stick by her in sickness and health, and I signed a piece of paper confirming that promise. I really do not care to help some jerk too selfish to do the same for the women he claims to love and support.

[jainen]

an unintended consequence

>>I am actually getting irritated at all this whining about how girlfriend boyfriend households are losing all these tax benefits. I really couldn't care less. I promised my wife 25 years ago to stick by her in sickness and health, and I signed a piece of paper confirming that promise. I really do not care to help some jerk too selfish to do the same for the women he claims to love and support.<<

Brad, you are my first ally in my position that Congress wanted to take away the benefit from unmarried couples. Some people are still waiting for the technical correction--they can't believe that any exemptions could be "wasted."

Another piece of evidence (for which I have no allies yet) is recognizing that the Qualified Child definition has been around for many years so Congress knew exactly what they were doing it in expanding its use.

It was not an unintended consequence.