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LopezBA
Returning Member

have legal guardianship of non-relative and have legal documentation reflecting that. The child was not placed into my care by the court system though. Can I claim the EITC?

I went to file my taxes with assistance in the turbo tax application. I have legal guardianship of a minor child that has lived with me since Aug 2022. I support the child 100 % with absolutely no assistance from either parent or any other family member. Not only do I house and cloth and feed the child, but I have also been responsible for all her medical care and bills. I do have guardianship paperwork reflecting the guardianship as well. I was told by the tax rep that I cannot claim the child as a qualifying child because she is not related to me, and because she was not placed with me through the court system.  Although the child was not placed with me through the courts, I do have legal guardianship paperwork which is recognized by the court system and all medical facilities. I think that the tax accountant was incorrect in not allowing me to claim the EITC, as I do believe I should be able to qualify for it. Any thoughts?

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3 Replies
JohnB5677
Employee Tax Expert

have legal guardianship of non-relative and have legal documentation reflecting that. The child was not placed into my care by the court system though. Can I claim the EITC?

No, Legal guardianship will not qualify the child as a dependent.

There are two ways for a person to be considered a dependent, and both require that they be related to you (including adoption).

A guardianship is not considered Foster Care nor an Adoption.

 

Please see the TurboTax article; Rules for Claiming Dependents on Taxes

Als se the IRS chart Overview of the Rules for Claiming a Dependent

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have legal guardianship of non-relative and have legal documentation reflecting that. The child was not placed into my care by the court system though. Can I claim the EITC?

The Tax Preparer is following the IRS Qualifying Child Rules which state the rules the child must meet to claim Earn Income Tax Credit. Besides having a valid Social Security and not being claimed by more than one person there are 4 tests to qualify a child for EITC.  The one you are referring to is under the Relationship test that I including here to clarify why the Tax Preparer told you that you cannot claim the child as a qualifying child because she is not related to you. The real reason is that the child does not meet the relationship test which states:

 

To be a qualifying child for the EITC, your child must be your:

  • Son, daughter, stepchild, adopted child, or foster child
  • Brother, sister,  half-brother, half-sister, stepsister or stepbrother
  • Grandchild, niece or nephew

Adopted child definition

An adopted child is a child who is lawfully placed with you for legal adoption.

Foster child definition

For the EITC, you can only claim a foster child that is placed with you by:

  • A State or local government agency
  • An Indian tribal government
  • A tax-exempt organization licensed by a state or an Indian tribal government
  • A court order

Did I answer your question?

have legal guardianship of non-relative and have legal documentation reflecting that. The child was not placed into my care by the court system though. Can I claim the EITC?

there are two types of dependents

1) qualifying relative.  one requirement for a child to be a qualifying relative (QR) is that they are not the qualifying child of another taxpayer. you have been granted guardianship which is not legal custody

2) qualifying child - the major requirement, other than being kin, to be claimed as a QC is that any absence from the taxpayer's principal residence is temporary. Thus it seems that at some point the child can be returned to either parent making their absence temporary.

 

because the child under these circumstances would be a QC they can not be a QR which means you can't claim them 

 

 

 

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