Dependent tie breaker rules

Forum|Forum|5 years ago
April 20, 2021
17 replies
162 views

Hi all,

I'm filing per publication 504 as I'm legally separated. We are both wanting to claim our 21 year old son who is a college student and didn't work the entire year. I meet all the requirements for HoH status except for the dependent possibly. He did live with me for 8 months, so I was going to apply the tie breaker rules. However I did notice a note about emancipated child in this publication. He is considered emancipated (18 years old in my state), therefore per the pub he is considered NOT living with either parent.

Emancipated child.
If a child is emancipated under state law, the child is treated as not living with either parent.
See Examples 5 and 6.

If that's the case and per the tie breaker rules, which apply to my situation? We are filing separately, we are both his parents, technically because he was emancipated the whole year we both earn 0 days, and my AGI was much higher than my ex's. How do the tie breaker rules get applied in this situation?

Thanks for any input.

Not A Product Question

Opus 17

Level 15

If the emancipated rule means that he is not considered to live with either parent, then he can't be a qualifying child dependent. He can be a qualifying relative dependent of whichever parent pays more than half his living expenses, but only if his taxable income is less than $4300. If his taxable income is more than that amount, or if neither parent paid more than half his living expenses, then neither parent can claim him as a dependent.

Hal_Al

Level 15

You're misinterpreting the emancipation lives with rule. There is no "custody" once a child reaches the age of emancipation. The IRS rules now govern. Even though a child is not legally a minor at age 18 (in most states), under IRS rules, the child of a taxpayer can still be a “Qualifying Child” (QC) dependent, regardless of his/her income, if:

1. He is under age 19, or under 24 if a full time student for at least 5 months of the year, or is totally & permanently disabled

2. He did not provide more than 1/2 his own support. Scholarships are considered third party support and not as support provided by the student. Note that there is no requirement that you provided support.

3. He physically resided with the parent (including temporary absences such as away at school) for more than half the year.

If he lived with both parents for more than half the year, then the tie breaker rules say the parent he lived with the most gets to claim him. That rule trumps the higher AGI rule.

Side issue: if still married, you only qualify for head of household if you lived apart the entire 2nd half of 2020.

Opus 17

Level 15

The problem with that interpretation is that the emancipation rule does not say “default to the normal rules“, it says that the child is treated as not living with either parent. Example 6 seems instructive here. In example 6, the child lives with parent number two for more than half the nights of the year, but is treated as a qualifying child of parent number one because the child lived with parent number one for more than half the nights of the year before the child turned 18. If the answer was simply to default to the normal rules, the child in example 6 would be the qualifying child of parent number two.

Here, if the child is 19, they turned 18 last year. I agree that it would seem more logical to default to the normal rules when the child turns 18, but it is not clear to me that is the case.

ColinW1972Author

Level 2

I agree with that statement and also example #5. Once the child was emancipated (18 years old in my state) he was not considered living with the parent any longer. In example #5 it's pretty clear that the child did not qualify the parent for the 6 month rule since the child was emancipated prior to the 6 month mark. My situation is similar, except my kid was 21 years old for the whole year (22 the last two days). My ex claimed him as her qualifying child but I think she can only claim him as a qualifying relative. And if that's the case, she can't claim him since I paid more than 50% of his expenses for the year. I would get to claim him as a qualifying relative and she would not be able to use him as a dependent.