Claiming an adult dependent for AOTC

[olga1310]

Hello,

My son is in Georgia State University and pursuing a full-time degree in Computer Science. We paid his tuition fees and got a 1098T from his university. He stays with us and do not work so we support him. We already filed our joint-return for 2022 and it was processed few days back. I read about the AOTC credits and think we may be eligible. Can we file an amendment to our 2022 joint-return to claim him as a dependent and request for AOTC credits as refund?

Additional information:

• He is 18 years old.
• He is not an US citizen.
• He came on L2A dependent visa to US on 15th July 2022. He was part-year resident for 2022.
• He is a full-time Freshman student (1st year college).
• The course and university are recognized for AOTC credit.
• We received Form 1098T for him with blank ITIN number. 
• We never claimed AOTC credits for him in the past.

Do we have to wait till May 2023 for him to meet the substantial presence test as he was part-year resident?

Since he is an adult does he have to make a signed statement to be qualified under substantial presence test?

He is not eligible for SSN so do we have to submit his W-7 form for ITIN along with our amendment return? 

thanks,

Olga

[MonikaK1]

Your child must have lived with you for more than half the year in order to qualify as a dependent, so he won't qualify for 2022. Please see this article for more information. The child needs to be your dependent in order to qualify you to claim the AOTC.

An eligible student for the AOTC is a student who:

• Was enrolled at least half-time in a program leading toward a degree, certificate or other recognized educational credential for at least one academic period during the tax year,
• Has not completed the first four years of post-secondary (education after high school) at the beginning of the tax year,
• Has not claimed (or someone else has not claimed) the AOTC for the student for more than four years, and
• Was not convicted of a federal or state felony drug offense at the end of the tax year.

Unlike the other education tax credits, the AOTC is allowed for expenses for course-related books, supplies, and equipment that are not necessarily paid to the educational institution but are needed for attendance. 

See this article for more information from TurboTax on this topic.

See here and here for more information from the IRS on this topic.

TurboTax doesn't support Form W-7, but here is how you can obtain one and have it processed:

Download Form W-7 directly from the IRS, fill it in, and print it out

• See the IRS instructions

You can either mail the Form W-7 and supporting documents to:

Internal Revenue Service

Austin Service Center, ITIN Operations

PO Box 149342

Austin, TX  78714-9342

Or, you can also bring your completed W-7, proof of identity, and foreign status documents to an acceptance agent or an IRS Taxpayer Assistance Center.

The substantial presence test is a separate issue. Please see this IRS webpage for more information on the substantial presence test.

[Edited 03/13/23| 8:59am PST]

@olga1310

[olga1310]

Hello Monika

thanks for the information. I have one question if any student is living far from their parents to attend college then they are not treated as dependent? Even though all expenses are paid by parents.

thanks

Olga

[TeresaM]

If the student is temporarily living at school and still maintains their permanent residence at their parent's home, then the time at school counts as time residing with their parents for purposes of answering dependency questions. 

[manuez35]

Hello Teresa,

So can I claim my son as dependent even though he lived for more than half year in India to complete his high school back in India. He came to US on 15th July and then enrolled in Georgia State University for BS in Comp Science which I am paying the tuition fees. We also got the 1098T from GSU.

thanks,

Olga

[PattiF]

Yes, you are able to claim your son even though he lived in India for more than half of the year.

From the IRS Publication 501:

Temporary absences.

You and your qualifying person are considered to live together even if one or both of you are temporarily absent from your home due to special circumstances such as illness, education, business, vacation, military service, or detention in a juvenile facility. It must be reasonable to assume the absent person will return to the home after the temporary absence. You must continue to keep up the home during the absence.

@manuez35 

[olga1310]

thanks for the information.

So based on the Temporary Absense exception he will qualify as a Qualifying Child.

But what about the US Resident Alien, can he meet the substantial presence test by 15 May 2023 by making a statement? Do he has to make a statement as he is an adult dependent or we have to make a statement or no statement is required as we are claiming him as a dependent?

[AbrahamT]

See HERE   and here HERE  Pg. 4 for what are the necessary requirements  to be met inorder to qualify for the substantial presence test for the year you are claiming it. From  the 1st publication, the statement 8843 is for an exempt individual who does not have to count certain days towards his substantial presence test which lists a student who is a student temporarily present in the U.S. under an "F," "J," "M," or "Q" visa, who substantially complies with the requirements of the visa. In your case, from what your'e telling me, he came on an L2A independent visa. I am making the assumption that this is the statement your'e referring to. Is that the statement? 

[olga1310]

Yes, he came on L2A visa on 15th July 2022 and started to stay with us. Until then he was in India completing is High School.

[AbrahamT]

So then he has way more than 31 days in the current year to fulfil the substantial presence test. He only has to fill out that statement if he has any days that would make him an "exempt individual" a student temporarily present in the U.S. under an "F," "J," "M," or "Q" visa . Because your son is under an L2A visa, he does "NOT" need the 8843 statement and he meets the substantial presence test in the current year as long as he meets the 183 days during the 3 year period that includes 31 days of the current year and 2 years immediately before that, counting

• All the days you were present in the current year, and
• 1/3 of the days you were present in the first year before the current year, and
• 1/6 of the days you were present in the second year before the current year

[olga1310]

thanks Abraham.. 

So just to reconfirm, once he meets substantial presence test on 15th  May 2023 I need to do the following. Correct?

1) File a Joint Amendment Return Form 1040X for 2022

2) Include him in Part I - Dependents

3) Attach a Form W-7 for ITIN with his I-94 and Passport

4) Attach revised Schedule 3 to include Non-refundable Education credits on line 3

5) Attach new Schedule 8863 to claim AOTC 

Am I missing something? Do I need anything else to be included.

thanks

[AbrahamT · Accepted solution]

That's absolutely correct.

[olga1310]

Thank you All

[manuez35]

Hi,

I was preparing to file the amendment return using the following forms.

1) File a Joint Amendment Return Form 1040X for 2022

2) Include him in Part I - Dependents

3) Attach a Form W-7 for ITIN with his I-94 and Passport

4) Attach revised Schedule 3 to include Non-refundable Education credits on line 3

5) Attach new Schedule 8863 to claim AOTC 

But, came across the following information in the instructions of Form 8862.

American opportunity tax credit (AOTC).

 You must have an SSN or ITIN to claim the AOTC. If you haven’t been issued an SSN or ITIN on or before the due date of your return (including extensions), you cannot claim the AOTC on either your original or amended return. Also, the AOTC is not allowed on either your original or amended return for a student who hasn’t been issued an SSN, ITIN, or ATIN on or before the due date of your return (including extensions).

Can we claim this credit in the Amendment form-X now as he didn't had a ITIN on or before the due date of original return? We will be applying for ITIN along with the amended return. Is it ok to apply for ITIN now? Will we be allowed to claim AOTC now in the Amended Return?