Claiming a Dependent: Brother lived with me for 7 months

[NightCrawler]

I've searched through countless forums on TurboTax and I've read through the IRS website on a qualifying dependent. I am 24 years old and I provided my now 13 year old brother full financial support and living expenses for 2016 for a total of 7 months. He came to live with my the Friday school let out last summer and has been living with me since then. During last years tax year, that puts a total of 7 months into account here. I actually only have documentation for the time he has been enrolled at school, at my address.

I don't have any kind of written permission from my mother or step father giving me the right to claim him on this years tax return. Even tho I rightfully should be allowed too.. but they're being greedy and won't let me claim him. I am scared to file with him on my return anyway. Because my mother will try to claim him anyway. And the last thing I want is my return to be delayed or audited by the IRS for two people claiming the same dependent...

Looking for any kind of advice on this situation. Thank you

[macuser_22 · Accepted solution]

To claim a Qualifying Child bu either you or your mother, the  child must have lived with the taxpayer more than half the year (There are exceptions for temporary absences such as school, illness, business, vacation, military service).  Unless the exception applies, then it would appear that yiu and not yiur mother is entitled tom claim.

However, If you both claim the same dependent here is what will happen - this can take a year or so.

If a dependent that you are entitled to claim has already been claimed by another taxpayer, your e-filed return will reject since the child's SSN has already been used.

Your only recourse is to file a correct tax return, claiming what you are entitled to claim, then print and mail the return.

The IRS will process both returns and pay any refunds. Shortly (within a year) the IRS will mail letters to both taxpayers asking if their tax return was filed in error and suggesting that they amend if they improperly claimed the child.

If neither taxpayer amends, the IRS will send a second letter asking for each taxpayers proof that they are entitled to claim the dependent, such as proof that the child physically lived with them more than half the year. School records, child care records, household receipts, medical bills, etc., that show that the child lives with you should be retained.

The IRS will evaluate each taxpayers claim and award the dependent to one taxpayer, the other will have to payback any refund received plus interest and possible penalties. The parent that had physical custody usually always wins.

Do not ignore the letters or you will loose.

[NightCrawler]

I am not his parent or legal guardian by court. I am just his oldest brother taking care of him but would like a rightful return of my investment for the things he needed. I have receipts proving the things I purchased for him. However I don't believe I have much that would prove him being here for the first month or two. Aside from his own statement he could provide I wouldn't have sufficient evidence to prove so.. what I do know is she is illegally claiming food stamps with him lived on the application as a dependent for benefits. This is likely how she would "claim he lived with her"

[macuser_22]

A brother is a qualifying child if the other tests are met.    I cannot advise you what to do it your situation only what will happen if you both claim him.  It would be up to you (and your mother) to provide sufficient proof to satisfy the IRS to award the disputed claim.

Per IRS Pub 17
Relationship Test for a Qualifying Child
"To meet this test, a child must be:
   - Your son, daughter, stepchild, foster child, or a descendant (for example, your grandchild) of any of them, or
   - Your brother, sister, half brother, half sister, stepbrother, stepsister, or a descendant (for example, your niece or nephew) of any of them."

---Tests To Be a Qualifying Child---
   (Must pass ALL of these tests)

NOTE: If a child passes all of these tests he must say “yes” on his/her own tax return (if he/she files one) that another taxpayer CAN claim him/her as a dependent even if they DO NOT claim him/her)

1. The child must be your son, daughter, stepchild, foster child, brother, sister, half brother, half sister, stepbrother,stepsister, or a descendant of any of them.

2. The child must be (a) under age 19 at the end of 2016, (b) under age 24 at the end of 2016 and a full-time student* for any part of 5 months of 2016, or (c) any age if permanently and totally disabled and must be younger than you (or your spouse if filing jointly).
 
3. The child must have lived with you for more than half of the year (There are exceptions for temporary absences such as school, illness, business, vacation, military service).

4. The child must not have provided more than half of his or her own support for the year.

5. If the child meets the rules to be a qualifying child of more than one person, you must be the person entitled to claim the child as a qualifying child.

6. The child is not filing a joint return.

7. The child must be a U.S. citizen, U.S. resident alien, U.S. national, or a resident of Canada or Mexico

 *A full-time student is a student who is enrolled for the number of hours or courses the school considers to be full-time attendance during some part of each of any 5 calendar months of the year.

See IRS Publication 17 for more information.

<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170876">https://www.irs.gov/pub...>