Taxpayer asks:
I am a junior in college. I have lived by myself and worked since my freshman year. Last year, my parents divorced. My brother was supposed to go live with my dad but he has issues. So, my brother came to live with me. I made sure he went to school, cooked dinner and sometimes hired a babysitter because I work. I did this for almost the whole year. My boss says I should claim him on my taxes since I file myself. But my dad says that he gets to claim him because he has custody. My brother never even talks to him, though. Who is right?
Taxgirl says:
Gosh, gosh, gosh. Okay, first things first: you totally need to hire a good tax pro and a good family lawyer. I’m guessing that you can’t afford to pay, so please check out this list of links to free legal aid.
That said, under the circumstances, it does sound like you could claim your brother as a dependent and file as Head of Household.
The problem is that if your dad also claims your brother, you could have a problem. The IRS will do a kind of “mini audit” to see who can properly claim your brother as a dependent. Here are the tests that the IRS will look to:
- Relationship. The dependent must be your child, stepchild, adopted child, foster child, brother or sister, or a descendant of one of these.
- Residence. The dependent must have the same residence as you for at least half of the tax year.
- Age. The dependent must be under age 19 at the end of the tax year; under age 24 and a full-time student for at least five months out of the year; or totally and permanently disabled.
- Support. The dependent must not have provided more than half of his or her own support during the tax year.
This area can be really bumpy, especially in emotional situations like this one where your dad feels like he’s entitled to claim your brother. I can’t stress enough how important it is for you to consult with an attorney.
Good luck to both of you!
Before you go: be sure to read my disclaimer. Remember, I’m a lawyer and we love disclaimers.
If you have a question, here’s how to Ask The Taxgirl.
This why I tell people, “Sure, you can do your own taxes, and yeah, the software does a lot of it for you — but there are situations where you need a tax pro to sort things out, even if you think your return is simple.”
Even just as a first-year preparer working for HRB, I’ve run into more than one situation where family dynamics like this come into play — it’s not just a matter of asking the software who gets to claim whom an plug in the numbers — sometimes, I tell someone they’re entitled to claim a child or grandchild (or other person living with them) as a dependent, but they tell me they do not want to do so, for reasons that have nothing to do with their tax liability. This is an unusual case, but by no means unique — often, domestic harmony requires someone to do something disadvantageous, from the tax pro’s point of view!
Urb
This is definitely a tricky situation. A few more issues for the Taxpayer to consider.
1) Is she herself the dependent of another taxpayer? The fact that she works and lives by herself while attending school, and files her own taxes does not necessarily mean that she is entitled to claim herself on her return. For example, if her mother is contributing to her support by paying college bills or giving her money for expenses, etc. , she might be her mother’s dependent.
2) If she IS the dependent of another taxpayer, then she may not claim any dependents of her own. The IRS is very clear on this issue: dependent taxpayers may not claim any dependents on their returns. So the first thing she needs to do is to be very careful to determine whether she is even allowed to claim herself on her own return.
3) The shared residence question is tricky for college students. Even if a college student did not physically live with her parent for most of 2008, the IRS may consider a college student to have “resided with” her parent, because the IRS generally deems absences from home to attend college, get medical treatment, visit relatives on vacation, etc. to be “temporary absences.”
4) The determination of dependent status can be very complicated. The rules Kelly listed above were the rules for a “Qualifying Child” dependent, but in some cases a child may not qualify as a “Qualifying Child,” but may be a “Qualifying Relative,” which has somewhat different criteria.
Another great free resource for your correspondent is the Volunteer Income Tax Assistance (VITA) program where she can get free help from volunteers with IRS training and certification. If she’s lucky, there might even be a VITA program run by a faculty member on her own college campus.
If she’s really lucky, depending on her major in college, she might even be able to enroll in a credit-bearing service-learning course at her college, which would give her IRS training and access to consultations with experienced supervisors and an “IRS relationship manager,” a specially assigned employee at the IRS in a division called Stakeholder Partnerships, Education and Communication (SPEC) who can help VITA volunteers to figure out how to deal with tricky situations like hers.
Whether or not her college offers such a course, she can get access to the free IRS training offered to VITA volunteers on-line here.
http://www.irs.gov/app/vita/basic_module.jsp
In order to make sure that her tax preparer is asking the right questions and reasoning through her situation correctly, I would highly recommend that she at least work through the module on personal and dependency exemptions here:
http://www.irs.gov/app/vita/content/0102/0102_00_000.html
Working through the examples in that module will enable her to have a better-informed conversation with her tax pro.
Thanks Mary! I agree that this is fraught with all kinds of potential land mines! That’s why my first advice is to definitely seek counsel.
Fair or not, I am assuming that mom isn’t around. It didn’t seem logical to me that dad would get custody but the child would opt to live with the sibling (who I’m imagining isn’t terribly flush since she’s in college) as opposed to mom, especially since statistically, moms get custody far more frequently than dads. So, my guess was that mom wasn’t claiming the daughter – but then, we don’t know that for sure.
Normally, I’d ask the taxpayer for more info but I think sitting down with an attorney is just super important and not just for taxes. I’m also concerned about the family law aspect – who has the legal permission to make decisions for the brother. Clearly, it’s dad. But we don’t know how far apart they live – what if there was a medical emergency that required parental consent for treatment? I do hope daughter gets some professional advice!
I absolutely agree that your correspondent needs to get legal assistance in order to deal with issues that could be far more pressing than the tax law.
A young person caring for a younger sibling whose father has “issues” as well as custody sounds highly problematic.
There are also potential ramifications as far as the child’s health insurance coverage. If he was previously covered as a dependent on his father’s health insurance, how would his dependent status for tax purposes affect that coverage?
So she should definitely get competent legal advice as well as tax advice.