EIC question

[Pacun]

Client married 20 year old sweetheart In February, 2019.  He is 21 years old and his twin brother came to live with them in April. His twin brother didn't provide more than half of his own support and he is a full time student at a local university.  Married couple made $30K in W-2s income. Can they claim earned income credit?

All of them are US citizen and have social security numbers. Brother still lives with them.

[RitaB]

The twin brother is not younger than the spouse, so no.

https://www.irs.gov/pub/irs-pdf/p5334.pdf

[Pacun]

Nice point... the student was the second to be born and he the first born baby of the year in the time zone he was born.... just for that fact, his brother deserves to get EIC...  do you agree?

 

[DANRVAN]

12 hours ago, Pacun said:

the student was the second to be born

So disregarding age of spouse vs brother, you are asking if younger twin can be Q-child of the older twin since he was born later?  I think so.

But how about if it was the other way around?  I think there is an argument that they are the same age and therefore twin #1 is not older than twin #2,  but I don't have anything to back it up, just off the top of my head.

[DANRVAN]

49 minutes ago, DANRVAN said:

 

Retract that, can't be the same age, dependent has to be younger.

Also it appears for EIC that if born on the same day they might be considered the same age if born on the same date:

*****************************************

Rev. Rul. 2003-72, 2003-2 CB 346, 07/19/2003, IRC Sec(s). 21

Earned income credit—point of attaining given age.

Headnote:

For purposes of various IRC provisions, IRS concluded that child attains given age on anniversary of date that child was born.

 

[DANRVAN]

21 hours ago, RitaB said:

The twin brother is not younger than the spouse, so no.

Rita,  at first I agreed with you but then had second thoughts.  The link you referred to is not consistent with other sources.

From pub 501:

"Child must be younger than you or your spouse........... However, if you are married filing jointly, the child must be younger than you or your spouse but doesn't have to be younger than both of you."

That is also consistent with section 152(c)3(A)  and the language in the 2008 Adoption Act which set forth the age restriction.

22 hours ago, Pacun said:

Can they claim earned income credit?

It looks like they can.

[DANRVAN]

49 minutes ago, DANRVAN said:

It looks like they can.

But then you still have the question as to whether twin #2 is considered to be younger than twin #1 by the IRS.

As mentioned above, they might be the same age per Rev. Rul. 2003-72, 2003-2 CB 346, 07/19/2003, IRC Sec(s). 21

If they were born before and after midnight you would have a definite answer.

[RitaB]

I think I'd print Publication 5334 and tell them,  "Sorry, no."  Just kidding.  Maybe.   

This is fascinating, and probably not at all what Congress had in mind by allowing a taxpayer to claim a younger sibling for EITC.  Which is the always the problem for these things.

 

[Pacun]

I made a point that a the second twin to be delivered was the first child of the year to be born in the time zone where he was delivered. So, if that is true, that means that the first twin was born the year before.  So in my second instance, I refer to the fact that the first twin (the married one) was born on December 31 and the second on January 1st (since he was the first baby of the year).  I understand that the chances of twins been born... one in one year and the other on another year is very isolated but if you considered that twins can be born any day and they can have different birth dates if one is born at 23:58 hours and the second at 00:02 hours.

Rita was correct by saying that since the twin brother were of the same age and the dependent was not younger than his wife, then... no EAC.

 

[DANRVAN]

45 minutes ago, Pacun said:

since the twin brother were of the same age and the dependent was not younger than his wife, then... no EAC.

I am not following you Pacun.  As previously posted, a sibling does not have to be younger than taxpayer's spouse per section 152(c)3(A) to be a Qualified child.

Also, if twin #1 was born before midnight and #2 after midnight, then  Rev. Rul. 2003-72, 2003-2 CB 346, 07/19/2003, IRC Sec(s). 21 indicates twin #2 is in fact younger than twin #1 for EIC purposes.  Even if they were born before and after midnight in the same year, you can  make the argument  that twin  #1 will always be one day older per the revenue ruling.

[Pacun]

Rita and I are in agreement with you.

Your second point, while interesting, it might not fly. The document that you present to prove if someone is older than another person is a birth certificate. The birth certificate doesn't have the time of birth, so if twins were born around 11AM, it will be impossible to prove which one is younger. I am sure in court you will be able to bring records from the hospital and then prove that one was older than the other but not during IRS audits.

 

[Lynn EA USTCP in Louisiana]

Pacun, my birth certificate does state the time I was born, and shows that I am 10 minutes older than my twin sister.

 

[RitaB]

13 hours ago, Pacun said:

Rita was correct by saying that since the twin brother were of the same age and the dependent was not younger than his wife, then... no EAC.

 

Yeah, but don't give me too much credit because apparently that Publication only works with twins. 

There's so much conflicting information out there, and that's just from IRS.  There was something the other day on FaceBook about CPE requirements the first year you're an EA.  We were all quoting things from IRS but arguing nonetheless.  I know we have to look at IRC, but so should they.  It's enough to make you take a wine per diem.