Attorney-at-Law

TIES DON’T COUNT

In Uncategorized on 04/30/2013 at 17:06

When it comes to Section 152(a)(1) qualifying children, ties don’t count if only one person could claim the child. That’s the lesson Judge Paris has for IRS in Basil Oliver, Jr, 2013 T. C. Memo.117, filed 4/30/13.

BO and IRS are fighting over the dependency exemption, child tax credit and additional EITC that BO took for baby TAH, who is “the twin son of petitioner’s halfbrother, Trenton Freeman. Petitioner and Mr. Freeman have the same mother but not the same father. Accordingly, petitioner’s father, Basil Oliver, Sr. (Basil Sr.),  is not the biological grandfather of TAH.” 2013 T.C. Memo. 117, at p. 2.

Clear?

BO and Sr. lived in the same house and took care of TAH, one of them babysitting while the other worked. Mama Deirdre provided healthcare via Medicaid, and she was TAH’s legal guardian. BO doesn’t have a lot of records to show what diapers, formula, shoes and clothing he bought TAH, but TAH had his own crib in BO’s bedroom.

IRS says no go; see the Section 152(c)(4) rules. This was a pain to memorize for the SEE, and I promptly forgot them as soon as the test was over.

Judge Paris: “…only taxpayers who share the same abode with the individual can claim the individual as a qualifying child. Sec. 152(c)(1)(B). The only taxpayers who satisfy this requirement are petitioner and his father. Specifically, neither of TAH’s parents can claim TAH as a qualifying child because neither had the same principal place of abode as TAH for more than one-half of the taxable year. Further, Basil Sr. cannot claim TAH as a qualifying child because TAH does not bear the requisite relationship to Basil Sr. See sec. 152(c)(2). TAH is not his child or stepchild–or descendent thereof–under section 152(f)(1)(A). Accordingly, petitioner is the only individual who can claim TAH as a qualifying child, and the section 152(c)(4) tie-breaker rules are inapplicable.” 2013 T. C. Memo. 117, at p. 9. (Footnote omitted).

BO gets the whole boat. And see my blogpost “Read The Law”, 9/12/11.

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