I am my son's IHSS provider. He is autistic..I was wondering since I'm his provider do I have to claim him on my taxes or can my sister and brother in law claim him?

[rustylee_98]

My son is over 21. Just wondering since I'm doing taxes now with everyone.

[MonikaK1]

Claiming a child as a dependent generally requires that

•  they live with you for more than half the year
•  they don't provide more than half of their own financial support
•  and are under the age of 19, or under 24 if a full-time student, or any age and totally and permanently disabled

IRS Publication 4012 provides a worksheet for determining support. If your son lives with just you and not with your sister / brother-in-law, and doesn't provide more than half of his own support, then you are the only one who can claim him as a dependent. If he lives with your sister instead, then she can claim him if he doesn't provide over half of his own support.

Adult children can be claimed as dependents but will have to meet the gross income test unless they are totally and permanently disabled. Gross income is the total of a taxpayer's unearned and earned income. If their gross income was $5,050 or more, you can't claim them as a dependent unless they are disabled. 

For the IRS to consider your dependent to be "disabled," your child must have a disability that meets one of the following criteria. The disability must have lasted continuously for at least one year. It will last continuously for at least one year. The disability can lead to death. To prove your child's disability, get a letter from their doctor, healthcare provider or any social service program or agency that can verify their disability.

If this is still the situation after he turns 24, he can still be considered a qualifying child for purposes of the Child Tax Credit. The IRS defines a dependent as a qualifying child (under age 19 or under 24 if a full-time student, or any age if permanently and totally disabled) or a qualifying relative.

See this TurboTax tips article for more information on claiming dependents.

[rustylee_98]

We all live together in the same residence.  He doesn't work. He does receive SSI payments which are not taxable.  

[MonikaK1]

Thanks for the additional information. Since you all live together, you or your sister could claim your son as a dependent, as long as he didn't provide over half of his own support. However, the IRS has a tie-breaker rule when the dependent could qualify for more than one person:

Tie Breaker Rules

Sometimes a child meets the rules to be a qualifying child of more than one person. The following rules must be applied to determine who can claim the child as a qualifying child. Under the tie-breaker rule, the child is treated as a qualifying child:

• The parent, if only one of the persons is the child's parent,
• The parent with whom the child lived the longest during the tax year, if two of the persons are the child's parent and they do not file a joint return together,
• The parent with the highest AGI if the child lived with each parent for the same amount of time during the tax year, and they do not file a joint return together,
• A non-parent, if no parent claims the child as a qualifying child although he or she may do so and only if the non-parent's AGI is higher than the highest AGI of any parent who may claim the child, or
• The person with the highest AGI, if none of the persons is the child's parent.

This information is found in Publication 501, Dependents, Standard Deduction, and Filing Information.

According to this IRS worksheet (which is an extract from Publication 4012), If a child receives Social Security (earned from working) benefits and uses them toward his or her own support, those benefits are considered as provided by the child. Benefits provided by the state to a needy person (welfare, food stamps, housing, SSI) are generally considered support provided by the state. So, if his payments are SSI, then he didn't provide his own support.

So, your sister could claim your son as a dependent if her Adjusted Gross Income is higher than your and you agree not to claim him. Otherwise, you would claim him as your dependent.