Child in Custody

[ED SMITH]

Twelve year old child was held in juvenile custody for 2 years. Can any exemption, tax credit, etc be claimed for the years when child was at home less than 6 months, such as in the case of of illness or a kidnapped child?

[Beth]

Child in Cutody

I believe they would have to provided more than half the support for the calendar year. If the child lived with them more than half the year, or they can show they paid more than the county or state for care, then yes, otherwise no...

[Jesse]

Concerning the "Member of the Household" test:

Taxbook page 3-18 - Exception to time lived with the taxpayer - Tempory absences for special circumstances, such as for school, vacation, medical care, military services, or detention in a juvenile facility, count as time lived with the taxpayer.

You would have to determine if the remaining dependency tests are met as well. Also, rules differ for a kidnapped child.

[Beth]

Child in Custody

Jese is right about what the taxbook says, but if the child is out of the hosuehold for more than half of the year, I still think the gov't is first in line so to speak on the dependency.

See LaTanya Haywood v. Commissioner, TC Memo 2002-258

[Jesse]

Facts and Circumstances need to be looked at in each situation.

In LaTanya Haywood v. Commissioner, TC Memo 2002-258 the child in question was 21 and was in a State prison, not a juvenille facility and the dependency deduction was not allowed because the support test was not met.

[Luis Mopeo]

Facts and Circumstances need to be looked at in each situation.

In LaTanya Haywood v. Commissioner, TC Memo 2002-258 the child in question was 21 and was in a State prison, not a juvenille facility and the dependency deduction was not allowed because the support test was not met.

That was also before the new rules for a qualifying child that refer to the "member of household" test, not the support test. The only mention of support for a qualifying child is that they can't have provided over 1/2 of their own support. Otherwise they just have to live in the taxpayer's house over half the year.

[Jesse]

You are correct and I was just trying to say the answer to Ed's question would be "it depends". For the dependency exemption and each tax credit the facts and circumstances in each individual case would need to be looked at.

If not a qualifying child, maybe a qualifying relative? Maybe a dependent, but no EIC? Maybe EIC but no H of H?

And, just when I think I have it figured out along comes the exception to the rule!

[Bees Knees]

The statement from TTB is taken from page 21 of the 1040 instructions, which says:

Exception to time lived with you. A person is considered to have
lived with you for all of 2006 if the person was born or died in 2006
and your home was this person’s home for the entire time he or she
was alive. Temporary absences for special circumstances, such as
for school, vacation, medical care, military service, or detention in a
juvenile facility, count as time lived with you. Also see Children of
divorced or separated parents that begins on page 20 or Kidnapped
child below.

Note that it does not say time spent in prison is considered temporary absence. Time spent in a juvenile facility is. In other words, even if the child is gone for 2 years, it is treated as if the child lives at home.

The difference is a juvenile facility is always temporary. Nobody is sentence to a juvenile facility for life. Thus, LaTanya Haywood v. Commissioner, TC Memo 2002-258 is irrelevant to detention in a juvenile facility.

[New York Enrolled Agent]

The statement from TTB is taken from page 21 of the 1040 instructions, which says:


In other words, even if the child is gone for 2 years, it is treated as if the child lives at home.

The difference is a juvenile facility is always temporary. Nobody is sentence to a juvenile facility for life. Thus, LaTanya Haywood v. Commissioner, TC Memo 2002-258 is irrelevant to detention in a juvenile facility.

While I agree with your basic concept, I'm not sure the word "always" is appropriate in the eyes of the IRS. I think "almost always" would be a better phrase.

In SCA 200002043 there was a discussion about residence in a juvenile center relative to HOH. I'll paste the conclusion of the SCA - note the use of the word "if".

CONCLUSION
Detention in a juvenile facility pending trial is a temporary absence from the household due to special circumstances if there is no intent on the part of the taxpayer and child to change the child's principal place of abode. Notwithstanding the child's temporary detention in the facility, the child's parent may qualify as head of household if the other requirements of section 2(b) and the regulations thereunder are satisfied. In addition, the child may meet the residency test of section 32.

[Bees Knees]

Detention in a juvenile facility pending trial is a temporary absence from the household due to special circumstances if there is no intent on the part of the taxpayer and child to change the child's principal place of abode.

So what do you think if means? If the parant and child intended for the child to move into a juvenile facility, then its no longer temporary?

[ED SMITH]

Thanks

to everyone that has answered.

I should have mentioned that this occurred in the years 2003 and 2004 and the returns are just being prepped now.
I asked the IRS Tax Law and they are researching it.

[New York Enrolled Agent]

So what do you think if means? If the parant and child intended for the child to move into a juvenile facility, then its no longer temporary?

Many of these minor children come from troubled and dysfunctional homes. I believe the SCA envisions an example such as the child lives with mom prior to the detention but Social Services & the Court plan that the child will reside with grandma or some other relative upon release from the facility.

The length of time is not important but the intent (as evidenced by a possible predetermined plan) clearly is. That's why "almost always" is my choice.

One further snip from the SCA.

[start] Detention in a juvenile facility pending trial can be a temporary absence notwithstanding the possibility that the child may be detained after the trial for an extended period of time in a juvenile facility. As indicated by the Hein case and Rev. Rul. 66-28, the length of the person's absence from the household does not, by itself, determine whether the absence is temporary. What is determinative is whether there is any intent to change the principal place of abode. [end]

[Bees Knees]

Many of these minor children come from troubled and dysfunctional homes. I believe the SCA envisions an example such as the child lives with mom prior to the detention but Social Services & the Court plan that the child will reside with grandma or some other relative upon release from the facility.

The length of time is not important but the intent (as evidenced by a possible predetermined plan) clearly is. That's why "almost always" is my choice.

No, The SCA indicates it’s the parent and child that need to have the intent, not the government. The government always intends for the kid to go to a juvenile facility when they get caught.

My point is 2 years is considered temporary, unless the parent and child intended for the child to move out and go to a juvenile facility. 5 years can be considered temporary, if there was no intent that the child would get caught robbing the local bank.

I suppose if you are Bonnie and Clyde, there could be your exception. But I think the rest of us don't intend on our kids ever having to go to a juvenile facility, even if the government and Social Services think we are too dysfunctional to raise our kid.

[New York Enrolled Agent]

Bees

Sometimes it's not worth posting on this board since you ALWAYS want to be right. And I don't need to say "almost always" here.

From the SCA "What is determinative is whether there is any intent to change the principal place of abode." I fail to see any quantifiers or modifiers here. Is the child (for WHATEVER reason or reasons) not going to return to their abode? That is the question.

I think it's best for other readers to make their own determination as to what that sentence means. I will post no further on this issue.

Just remember not everyone lives in Garrison Keillor country. Some parents have no parenting skills and probably none of them post on this board.

[Bees Knees]

That's why "almost always" is my choice.

Bees

Sometimes it's not worth posting on this board since you ALWAYS want to be right. And I don't need to say "almost always" here.

See…sometimes you can say ALWAYS.

I was just trying to get you to think outside the box.

From the SCA "What is determinative is whether there is any intent to change the principal place of abode." I fail to see any quantifiers or modifiers here. Is the child (for WHATEVER reason or reasons) not going to return to their abode? That is the question.

And the same thing can be said about temporary absence due to medical reasons, school, vacation, etc. Someone goes on vacation and never intends to return home. No longer a temporary absence.

I agree, its not worth being nit-picky over this. Of course I understand your point. If it makes you feel better, I’ll try to use the words “generally” and “99.9999% of the time” more often.

BTW, Garrison Keillor is not the only representation of how we think up here. Watch the movie Fargo. That’s more realistic.