Can parent get refunded for qualified education expenses even when student has unearned income on 1098-T?

[FLmom]

I'm a single mother filing as HOH.  I have 19 year old son that I claim as a qualified dependent who was a first year college student in 2020.

My son received a 1098-T with Box 5 is larger than Box 1 by ~ $3,000 (applied to room/board and other non-qualified expenses).  My understanding is that my son needs to file a return and report the $3,000 as unearned income (because it exceeds the $1,100 unearned income threshold).  My son has no income or reportable items of any kind other than the 1098-T unearned income from scholarships/grants.

We've used Turbotax to prepare (not filed yet) a separate return for myself and my son, but I could really use some advice/validation as to whether this is the correct way to file.

I entered the 1098-T my son received on my return.  I also submitted an additional $1,740 in qualified expenses spent on a laptop (required for online school this year) and books.  Although Turbotax warns me that my son will need to report the unearned income (difference between Box 5 and Box 1), it is giving me a refund for the full $1,740 in expenses under the American Opportunity Credit.  

My son also submits the 1098-T on his return.  He does NOT submit the $1,740 in additional expenses to offset the difference between Box 5 and Box 1.  He states that he can, and will, be claimed as a dependent, therefore disqualifying him from educational credits.  By submitting the 1098-T on his return, Turbotax captures his unearned income and prompts him to complete Form 8615 and provide my name, ss#, etc...   In the end, Turbotax says that he has no tax due.

Questions:

1. Is including the 1098-T on both returns a valid approach?

2. Am I really allowed to get refunded for the $1,740 out-of-pocket qualified expenses under the American Opportunity Credit even if my son has unearned income to report from the scholarships/grants received?

3. If Turbotax states that my son has no tax due after reporting the 1098-T and 8615, does he still need to file? - I assume yes because his unearned income exceeds the $1,100 threshold but I am not sure.

This approach has allowed me to maximize my return by getting refunded for the $1,740 in expenses, while my son is simultaneously avoiding tax due on the unearned income from the 1098-T.  Is this legitimate and should I be concerned that the IRS might flag either my, or my sons return?

[Hal_Al]

You son does NOT need to file a tax return if the $3000 of scholarship income is his only income.  Although taxable  scholarship is unearned income, for purposes of  calculating a dependent's standard deduction, it is treated as earned income.  Another way of saying that is, scholarship income is not subject to the $1100 filing threshold, it falls under the  $12,400 filing threshold. 

Q. 1. Is including the 1098-T on both returns a valid approach?

A 1.. Yes

Q. 2. Am I really allowed to get refunded for the $1,740 out-of-pocket qualified expenses under the American Opportunity Credit even if my son has unearned income to report from the scholarships/grants received?

A. 2. Yes and it gets better. You are allowed  to claim even more and get the maximum $2500 American Opportunity Credit.  See details below*. 

Q. 3. If Turbotax states that my son has no tax due after reporting the 1098-T and 8615, does he still need to file? -

A. 3. No. As stated before, it's the $12,400 threshold that applies, not $1100.

Q. 4.  This approach has allowed me to maximize my return by getting refunded for the $1,740 in expenses, while my son is simultaneously avoiding tax due on the unearned income from the 1098-T.  Is this legitimate and should I be concerned that the IRS might flag either my, or my sons return?

A. 4.  Yes, very legitimate and even quoted in IRS publications. See below*.  

*There is a tax “loophole” available. The student reports all his scholarship, up to the amount needed to claim the American opportunity credit, as income on his return. That way, the parents  (or himself, if he is not a dependent) can claim the tuition credit on their return. They can do this because that much tuition was no longer paid by "tax free" scholarship.  You cannot do this if the school’s billing statement specifically shows the scholarships being applied to tuition or if the conditions of the grant are that it be used to pay for qualified expenses.

Using an example: Student has $10,000 in box 5 of the 1098-T and $7000 in box 1. At first glance he/she has $3000 of taxable income and nobody can claim the American opportunity credit. But if she reports $7000 as income on her return, the parents can claim $4000 of qualified expenses on their return.

Adding  your $1740 of out of pocket expenses to the example; the student only reports $5260 as income.

This is not some sinister scheme. From the 2019 form 1040 instructions (pg 95): “You may be able to increase an education credit if the student chooses to include all or part of a Pell grant or certain other scholarships or fellowships in income. For more information, see Pub. 970, the instructions for Form 1040, line 18c, and IRS.gov/EdCredit.  Page 16 of PUB 970 (2019) actually has examples of how to do the “loop hole”.

[FLmom]

@Hal_Al 

Thanks so much for the response and for clarifying the opportunity to utilize the 'loophole' and maximize the American Opportunity Credit.

[RayW7]

If the parent is claiming the student as a dependent on their (the parents) income tax return, then the parent enters the 1098-T Tuition form on their (the parents) income tax return.

Before you enter the 1098-T form, here's some important info you need to know:

• If the student on the 1098-T is your dependent, enter the 1098-T on your return, even if your dependent paid the tuition.
• If the student on the 1098-T is you, and you're not being claimed as a dependent, enter the 1098-T on your return unless your employer paid for or reimbursed your tuition (in which case, just keep the 1098-T with your tax records).
• Enter your 1098-T exactly "as is" even if the amounts are wrong (this is common). Don't worry, we'll give you the opportunity to enter all your expenses later.
• Don't enter a "0" in any boxes that are blank, as this will generate errors. Leave blank boxes blank.