incarcerated child

[imjulier]

Adopted or foster child for which client has custody was incarcerated for all of 2009. Child meets all requirements to be claimed as dependent except for residency. Can incarceration be considered an exception for temporary absences for this requirement? I'm not finding it but wanted to see what this board thought. Thanks for any info.

Julie

[kcjenkins]

How can he meet the qualifying tests, when the state was the one providing housing and food and even medical?

[imjulier]

I was looking at the rules for Qualifying child because he does qualify as their qualifying child based on relationship, age, support (this rule is different than if he was a qualifying relative), and joint return. The one I think he might not meet is the residency requirement.

Julie

[Crank]

This is the first time I have encountered this situation also. I was thinking along the same lines as kc. The child was in jail for the entire year so the parents did not provide >1/2 of their support.

[jainen]

>> the state was the one providing housing <<

As imjulier says, third-party support does NOT affect qualifying child status. Why do we still have to argue this point five years after Section 152 was changed?

I would treat incarceration as a temporary absence IF in fact the sentence and time served were no more than one year. Apparently in the original post it was longer than one year, so in this case I would say no.

Anyway I'm not sure about the relationship. Was the child adopted? There is no "custody" as such for a foster child because parental rights continue. Or can we say he was a foster child placed in the home by an official agency when an official agency removed him instead? Was he placed back in the same home?

[kcjenkins]

As a foster child, he'd have to be with them all year. An 'adopted' child is simply your child, so the adoption is not an issue, but it's not clear what the actual relationship is, based on the original post. I just know I would not claim a dependent who was in jail for the entire year. Seems like a perversion of the whole idea of dependency.

[DANRVAN]

Caution, proceed at your own risk.

Dependency exemptionearned income creditincarcerated childproof of support; principle abode.

Taxpayer was denied dependency exemption for son who was incarcerated during entire year at issue: taxpayer failed to show that she provided more than 1/2 of son's support where she wasn't required by state to support son while incarcerated and amounts she voluntarily contributed to account for him to purchase allowable incidentals was significantly less than support provided by state. Also, taxpayer was denied EIC where son wasn't qualifying child under Code Sec. 32©(1)(A)(i) : he didn't have same principal place of abode as mother for more than 1/2 of year at issue. (Latanya Haywood v. Commissioner, (2002) TC Memo 2002-258 , 2002 RIA TC Memo ¶2002-258 )

[jainen]

>>taxpayer failed to show that she provided more than 1/2 of son's support.... TC Memo 2002-258 <<

As I said, "Why do we still have to argue this point FIVE years after Section 152 was changed?" You'll have to use fingers on both hands to figure this out, but 2002 was EIGHT years ago.

[imjulier]

Thanks all for your input. I'm going to not claim the child since he doesn't meet the residency requirement and this is not a temporary absence. At this point, its unclear when the child may be released.

Julie