Claim DCFSA when one working parent does not have earned income due to tax treaty

[marina61771]

We are both full-time working parents. Since my husband is in on a J1 visa and a Romanian national he can apply the Romania-USA tax treaty and treat all his income as not taxable. Now I have contributed 5,000$ to a DCFSA and would like to claim it on the tax return. However turbotax doesn't let me because my husband's w2 reports less than 6000$ income (due to the tax treaty exemption). Is there a way for me to claim the DCFSA.

[MaryK4]

No, unfortunately, unless he is a full-time student or disabled, he would need taxable compensation for you to claim the dependent care benefit.

See The Ins and Outs of the Child and Dependent Care Tax Credit.