Can my girlfriend claim my children as dependants?

[AlleyOmalley]

I am a full time university student and my girlfriend pays all of our bills. We have lived together everyday this year. A tax preparer told us she can not claim my two children for earned income credit because we are not married and she is not biologically related to them. Is this accurate? My childrens father did not work this year and neither did I so we are not eligible to claim them. I thought they would qualify because though we are not married she is their "step-mother."

[NCperson]

@AlleyOmalley - 

he is correct, that your roommate can not claim your children for EITC because there is no legal or biological relationship between them and her. 

https://www.irs.gov/credits-deductions/individuals/earned-income-tax-credit/who-qualifies-for-the-ea...

However, it is possible for your room mate to claim your children as a dependent since they lived with her all year.  best to review this calculator to determine for sure. 

https://www.irs.gov/help/ita/whom-may-i-claim-as-a-dependent

note there is one credit for dependents and a separate credit for EITC.  the roommate can't claim the children for EITC but may be able to claim them for the 'other depedent credit'

[xmasbaby0]

Your GF is not a "step-mother" since you are not married.   Since your roommate is not biologically  or legally related to your children, the only child-related credit she may be eligible to get by claiming them as dependents is the $500 credit for other dependents.   She cannot use them as qualifying children to file as Head of Household, get earned income credit, child tax credit or dependent care credit.   Your tax preparer was correct about that.

CREDIT FOR OTHER DEPENDENTS

https://ttlc.intuit.com/questions/4499708-what-is-the-500-credit-for-other-dependents-family-tax-cre...

If you lived together for the entire tax year, your roommate may also be able to claim YOU as a dependent for the $500 credit, if you did not have income exceeding $4400 in 2022--not counting any Social Security.  That $500 credit is not a refundable credit; it lowers the amount of tax owed.

[Hal_Al]

There are two types of dependents, "Qualifying Children"(QC) and Other ("Qualifying Relative" in IRS parlance even though they don't have to actually be related). There is no income limit for a QC but there is an age limit, student status, a relationship test and residence test. Only a QC qualifies a taxpayer for the Earned Income Credit and the Child Tax Credit.

A step child (child of a legal spouse)  is the same as a biological child and can be a QC. But, the child of a live in girlfriend can only be an other dependent, and even then, only if they lived in the same household all year (other rules must also be met*). 

If you get married before year end, she can claim your children as QC dependents.  Most likely, in that situation, you would also file as Married Filing Jointly.

*A person can still be a Qualifying relative (Other) dependent, if not a Qualifying Child, if he meets the 6 tests for claiming a dependent:

1. Closely Related OR live with the taxpayer ALL year
2. His/her gross taxable income for the year must be less than $4400 (2022).
3. The taxpayer must have provided more than 1/2 his support

In either case:

4. He must be a US citizen or resident of the US, Canada or Mexico
5. He must not file a joint return with his spouse or be claiming a dependent of his own
6. He must not be the qualifying child of another taxpayer

He must have a US social security number or tax identification number (TIN)

In addition to the above requirements, to claim your girlfriend's children, they must meet all of the above requirements and:
--- your girlfriend must not be required to file a return,
--- she does not file a return claiming the children

[Mike9241]

something else. can your parents or either one claim you as a qualifying child? the information you provided narrows it down to one question. will you be under the age of 24 at the end of 2022? if yes then you could be their dependent (or the dependent of one of them) which would bar your girlfriend from claiming you.