Qualifying Child Controversy

[Unregistered]

TB page 3-15. Test 1. The niece, as a dependent, cannot have a qualifying child. Regardless of her "taxpayer" status.

[Unregistered]

dependency test

The niece would not qualify as a qualifying child (probably because she would fail the age test), but she should qualify under the qualifying relative test, the niece child should qualify under the qualifying child test.

[Koss]

Dependent cannot have a qualifying child

TB page 3-15. Test 1. The niece, as a dependent, cannot have a qualifying child. Regardless of her "taxpayer" status.

This anonymous, unregistered guest has summarized in one sentence an alternate theory that I have been working on for a couple days now. A careful reading of the tax law itself indicates that what the authors may have meant is this:

There are two types of dependents: Qualifying Child and Qualifying Relative.

Oh, and by the way, if you yourself are a dependent, then you are treated as not having any dependents. A dependent cannot have a dependent.

* * * * *

Within the scope of IRC 152, for purposes of addressing the question of whether a person may claim a dependent exemption, a dependent cannot have dependents. It follows, therefore, that a dependent cannot have either type of dependent. A dependent cannot have a dependent who is a qualifying child, and a dependent cannot have a dependent who is a qualifying relative.

This logic is virtually airtight if you recognize that this entire discussion is limited to the scope of IRC 152, and to the determination of eligibility for a dependent exemption. In other words, this is the definition of a qualifying child for purposes of claiming the child as a dependent. If you yourself are a dependent, then you cannot claim any type of dependents. Therefore, FOR PURPOSES OF DETERMINING DEPENDENCY, you do not have any type of dependent. You cannot have either type. You cannot have the "qualifying child" type of dependent or the "qualifying relative" type of dependent.

And this means that the child of the nonworking mother is not her qualifying child, because she herself is a dependent of her male partner.

The major objection to this argument is going to be:

"But wait a minute! The IRS just released a form that allows a person to have a qualifying child for the child tax credit even though the child is not their dependent. So obviously, a person can have a qualifying child that is not a dependent. Therefore, someone who is claimed as a dependent can have a qualifying child, and this make it impossible for the male partner to claim the child as a qualifying relative."

To this I respond:

You are misreading the SCOPE of IRC 152. IRC 152 begins with a definition for the term dependent, then says that dependents cannot have dependents, and then defines Qualifying Child and Qualifying Relative. This section of the IRC determines whether and when a person may claim a dependent exemption. It doesn't do anything else.

The Child Tax Credit and the Earned Income Credit are authorized by completely different sections of the tax code. Under the new law, these sections use the definition of a qualifying child that is found in IRC 152, and it is in fact possible to claim these credits for a child who is not your dependent. This is because these sections refer directly to IRC 152 (c) for the definition, and say nothing about dependency.

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However, the code sections that provide the CTC and the EIC do not create a "non-dependent qualifying child" for purposes of determining dependent exemptions, within the meaning of IRC 152. A proper reading of IRC 152 is that there are two "flavors" of dependents: qualifying child and qualifying relative. And if you yourself are a dependent, you can't have either flavor.
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I think I like this argument better than the "not a taxpayer" argument. But I haven't abandoned that theory, either.

[Bees Knees]

Burton!!!!

What took you so long gettin' over here. We've been waiting and waiting and waiting...alomost gave up all hope.

[Armando Beaujolais]

Now it's a party!

Nice to see you Mr. Koss. Stick around a while. There are some real colorful characters who pass through every now and again.

[Bees Knees]

I think Mr. Koss knows most of us from way back....

And this means that the child of the nonworking mother is not her qualifying child, because she herself is a dependent of her male partner.

Good point. However, I disagree with your conclusion. Section 152(d)(1)(D) says a qualifying relative cannot be a qualifying child of…any other taxpayer. It does not say: “cannot be a dependent of any other taxpayer.” It uses the term “qualifying child.”

What is the definition of a “qualifying child?”

Section 152(c) contains nothing in it that says a qualifying child has to be your dependent. So just because the mother is not eligible to claim her qualifying child as a dependent because she herself is a dependent of someone else, that in itself does not disqualify her child from the “qualifying child” definition.

[Koss]

Ordering of Definitions

Bees, we may have to agree to disagree. My argument is that the definitions of "qualifying child" and "qualifying relative" are subordinate to the definition of a dependent.

IRC 152 defines the term dependent. It does this by establishing two categories of dependents: qualifying child and qualifying relative. But a dependent cannot have a dependent. If you are treated as having no dependents, then the question of whether a particular person is your qualifying child is never reached, because within the scope of IRC 152, a qualifying child is simply a type of dependent.

Imagine, just for fun the following nonexistent federal law:

(a) The term "pet" means:

(1) a dog, or
(2) a cat.

(b) Exception. Any individual who is a pet of another individual is treated as having no pets for the year in question.

(c) Definition of a dog. A dog is a four legged animal who lives in the taxpayer's home for the entire year.

(d) Definition of a cat. A cat is a four legged animal who lives in the taxpayer's home for the entire year and is not the dog of the taxpayer or any other taxpayer.

So if I have a dog, my dog is treated as having no pets. It is impossible for any animal to be considered the dog of my dog, because a pet cannot have a pet.

I'm not sure I can explain this any other way.

The text of IRC 152 (a) reads:

The term 'dependent' means:

(1) a qualifying child, or
(2) a qualifying relative.

This text should be read in the same way as other definitions within the tax code that are phrased the same way.

The strongest point that I can make is that the defiinition of a DEPENDENT, as expressed in IRC 152(a), has a scope that is expressed with the phrase "for purposes of this subtitle," referring to all of Subtitle A. But the definition of "qualifying child," as expressed in IRC 152(c), has a scope that is expressed with the phrase "for purposes of this section," which refers only to Section 152 itself. The definition of qualifying child is only applicable within the meaning of Section 152. Other sections may "borrow" the definition for their own purposes, such as EIC or Child Tax Credit. But the purpose of IRC 152 is to define the term dependent. The definitions of qualifying child and qualifying relative are contained within the definition of a dependent. If something is a dependent, then it's either a QC or a QR. But if it isn't a dependent, it can't possibly be a QC or QR, because these terms merely define "species" dependents.

Burton M. Koss

https://www.usakoss.net

koss@usakoss.net

[Bees Knees]

Imagine, just for fun the following nonexistent federal law:

(a) The term "pet" means:

(1) a dog, or
(2) a cat.

(b) Exception. Any individual who is a pet of another individual is treated as having no pets for the year in question.

(c) Definition of a dog. A dog is a four legged animal who lives in the taxpayer's home for the entire year.

(d) Definition of a cat. A cat is a four legged animal who lives in the taxpayer's home for the entire year and is not the dog of the taxpayer or any other taxpayer.

So if I have a dog, my dog is treated as having no pets. It is impossible for any animal to be considered the dog of my dog, because a pet cannot have a pet.

No, it is impossible for any animal to be considered the pet of your dog. Your limitation in section (b) above said the term pet cannot apply to the pet of a pet. It does nothing to change the definition of a dog in section (c) above.

A dog is a dog is a dog is a dog. Whether it is a pet is another story.

A qualifying child is a qualifying child. Whether he or she is a dependent is another story.

[Koss]

Person vs. Taxpayer

http://www.irs.gov/formspubs/article...child_def_2005

In the link above it reads: ...To claim the dependency exemption for a qualifying relative, the child cannot be the qualifying child of any other person and all five dependency tests discussed under Dependency Tests in Publication 501 must be met.

Note: It reads .....Person... and not taxpayer.

Yes, that it what the IRS publications say. That is NOT what it says in the federal tax law that was enacted by Congress. If an IRS publication conflicts with the US Code, who do you think is going to win?

Burton M. Koss

https://www.usakoss.net

[Koss]

UDC: New Argument

I have posted a new article on my website, which addresses an entirely new approach to the questions that we have been debating.

I have not entirely abandoned the theory that certain parents are not taxpayers as defined by IRC 7701. But the new analysis raises a completely different question about the intended meaning of WFTRA.

I am quickly reaching the point where I don't think anyone is equipped to form an opinion on this matter unless they have actually read the portion of WFTRA that contains the so-called Uniform Definition of a Child.

There is a link to the text of the law on my site.

https://www.usakoss.net

Burton M. Koss

koss@usakoss.net

[Unregistered]

Dependents, UDC Update

Koss posted a new page about this yesterday, there's a tool on the IRS website for deciding whether someone can claim dependent... I'm looking at it now... his site is www.usakoss.net

[headly]

more on child controversy

I have read everything posted on this and would like to add one more reference point to this, which does not solve it but only adds to the controversy.

In reading the "2006 U.S. Masters Tax Guide"

I don't want to quote the example (don't have the author's permission)- but it deals with the same situation, a women and her son living with the boyfriend. And, it says, the child is a qualifying child of the mother and the boyfriend cannot claim him as a dependent. Since the mother does not have to file a return, the dependent exemption for the child goes unclaimed.







.

[BP.]

qualifying relative

On page 27 of Publication 17, there's a discussion of an individual who is a dependent of another, and has a daughter. Addressing the individual, the language says that because the individual fails the Dependent Taxpayer Test, " . . . you cannot treat your daughter as a qualifying child and cannot claim her as a dependent." If an individual claimed as a dependent is expressly barred from treating their child as a qualifying child, why won't that child then pass the Not a Qualifying Child Test to be a Qualifying Relative?

[jainen]

teenage mother

The reason the teenage mother in that example can not have a qualifying child is because she is a qualifying child herself, not because she is a dependent. Look back two pages to the actual description of Dependent Taxpayer Test, where it says "Even if you have a qualifying child or qualifying relative, you cannot claim that person as a dependent."

[BP.]

Saw it

Yeah, I saw that fly in the ointment you mentioned.