[lifechanges]

Wanted to see what some of your experiences are that have claimed foster children on taxes before.

I foster my niece and nephew in CA. They came to live with me August 6, 2011. Officially placed Sept. 16. We also had them at least one day of every weekend since Jan. 2011 as well as 3 weeks in Jan and one in Feb. of 2011. They lived with their mom the additional time, dad visited.

birthmom says she will not be doing taxes, BD did not reply to my e-mail when I asked him. I know in CA you have to have had the kids at least 6 months to claim them. We are right on the fringe. What would you do?

[TemporaryMom]

Originally Posted by lifechanges

Wanted to see what some of your experiences are that have claimed foster children on taxes before.

I foster my niece and nephew in CA. They came to live with me August 6, 2011. Officially placed Sept. 16. We also had them at least one day of every weekend since Jan. 2011 as well as 3 weeks in Jan and one in Feb. of 2011. They lived with their mom the additional time, dad visited.

birthmom says she will not be doing taxes, BD did not reply to my e-mail when I asked him. I know in CA you have to have had the kids at least 6 months to claim them. We are right on the fringe. What would you do?

This isn't mandated by state but by federal. You must have the children for greater than 6 months to claim as dependents, so they would not qualify this year. :-( If you were to use TurboTax, it actually asks you if they resided with you for more than 6 months.

ETA: Link to IRS Rules: A “Qualifying Child”

[ImpactingLives]

Originally Posted by lifechanges

They came to live with me August 6, 2011. Officially placed Sept. 16.

Unfortunately, the kids have only lived with you 148 days, the IRS says 1/2 the year, which is 183 days. So you do not have the right to claim them.

[TRas]

I think you have had them more than 6 months.. August 6 to the end of the year is almost 5 months, plus 4 more weeks in Jan/Feb. Plus you had them at least another 20 days on weekends. I think you are over the necessary days.

[wendy_bird23]

I have the same frustration with my FD. She was placed with me in the end of July so with me not quite 6 months. I wish you could claim them for the percentage of the year they were placed with you. It would really make a big difference for me -my taxes are high because I'm self employed and I'd really love to be able to claim Teeny. maybe next year.

[elk134]

I also would not think the children qualify. As others stated, the regulation states the children have to live with you for more than half the year. They only came to live with you on August 6th. The one days on the weekends sound like they were just visits, it would not be considered living with you. The few weeks in January, and the week in February may be iffy on whether it's a visit or they actually lived with you based on those individual circumstances. But even if they were considered to have lived with you for those four weeks, it still would not be enough time to meet the test for living with you for over half the year.

I know it's a bummer!

[Hoping2adoptsibs]

I wouldn't jeopardize my taxes by claiming them when the BD could or has. I'm a very by the books person and would go nuts if the IRS thought I claimed a child that I had no right to do. Not worth it for me.

[Barb65]

If you don't feel you can get it in under the qualifying child rules, at least look at the qualifying relative rules, they are slightly different and may give you the leverage you need to substantiate the deduction. I don't think you get the child tax credit with that though, although I'm not sure as I've only ever used the qualifying relative on my adult children that have come back home.

[elk134]

Originally Posted by Barb65

If you don't feel you can get it in under the qualifying child rules, at least look at the qualifying relative rules, they are slightly different and may give you the leverage you need to substantiate the deduction. I don't think you get the child tax credit with that though, although I'm not sure as I've only ever used the qualifying relative on my adult children that have come back home.

Yes, it is possible you could be a qualifying relative, but it would be hard to mee the support test. And also keep in mind, that the qualifying relative is only applicable if the child is NOT a qualifying child of someone else. And in this case, the kids may still qualify as qualifying children of the parents. But definitely worth looking into.

[feelingreyt]

To meet the test of qualifying relative the person must have lived with you all year. There are other requirements, but you fail to meet that one.

I would count up all the nights the child spent in your home. That is what the IRS would go by in the event you were audited. The child must be in your home OVER 6 months to qualify as a qualifying child.

[ImpactingLives]

Originally Posted by feelingreyt

The child must be in your home OVER 6 months to qualify as a qualifying child.

Actually the wording is 1/2 the year, which is not 6m, it's 183 days.

The IRS would not count the weekend nights. They would only count the time the child actually lived with you. You have to consider what you can PROVE...So unless you can prove beyond a shadow of a doubt that you had the child 183 days in 2011 you can't claim the child.

[lifechanges]

Thanks for everyone's input.

It is so close to being 6 months if not a little over. My sister said she will not claim them and technically the BD only had them in Jan 2011, so he really can't/shouldn't be claiming them. It would be such a huge change in my taxes I am considering asking them to sign a letter saying they won't claim them and that I can (maybe even offer a little kick back, they're money greedy, so I'm sure it will work). That way if I get audited I'll have a signed notarized letter by them saying they wouldn't claim them because I had them more than 6 months. Including other documentation.

We'll see!

[feelingreyt]

Originally Posted by ImpactingLives

Actually the wording is 1/2 the year, which is not 6m, it's 183 days.

The IRS would not count the weekend nights. They would only count the time the child actually lived with you. You have to consider what you can PROVE...So unless you can prove beyond a shadow of a doubt that you had the child 183 days in 2011 you can't claim the child.

I'm not one to argue over petty things, but the PUB 17 says MORE THAN half the year(Which is OVER 6 months, even if by 1 day)

Also, if the child happens to be the qualifying child of 2 different people, then the person with the higher AGI will break the tie breaker rules.

IRS.gov Pub 17 Qualifying Child Rules

[elk134]

Originally Posted by feelingreyt

To meet the test of qualifying relative the person must have lived with you all year. There are other requirements, but you fail to meet that one.

Actually to meet the test of qualifying relative for this case, the kids would not have to live with them for the entire year because they are related to them in one of the ways that they are required to be related for "relatives who do not live with you." The requirement for living with someone the entire year only applies if the person the taxpayer is claiming is not related. (Think freeloading friend)

And ImpactingLives is not trying to petty on wording, she just trying to be specific. Because the IRS sure will be! Greater than half the year is not necessarily the same as 6 months plus one day because it depends on which 6 months are used.

For example suppose child lives with Person A all of Feb, April, May, June, July, Aug and one day in Sep. It seems they have lived with them 6 months plus one day. But they lived with Person B, the rest of Sept (except for that one day) all of January, March, Oct, Nov, and Dec. Even though Person B had them less than 6 "calendar" months, they actually had them 183 days, and thus would get to claim them.

Yes, normally it may seem like over 6 months and your fine, but in situations where kids move a lot, such as with the OP, that is why the law is written the way it is. Hope that clears it up.

To the OP: Technically if the parents can claim this child as a qualifying child, they cannot give you permission to claim the child as a qualifying child. The IRS would not see it that way. If you were to get audited the exemptions would be disallowed.

[ImpactingLives]

Originally Posted by lifechanges

Thanks for everyone's input.

It is so close to being 6 months if not a little over. My sister said she will not claim them and technically the BD only had them in Jan 2011, so he really can't/shouldn't be claiming them. It would be such a huge change in my taxes I am considering asking them to sign a letter saying they won't claim them and that I can (maybe even offer a little kick back, they're money greedy, so I'm sure it will work). That way if I get audited I'll have a signed notarized letter by them saying they wouldn't claim them because I had them more than 6 months. Including other documentation.

We'll see!

There is actually a form they would have to sign...

http://www.irs.gov/pub/irs-pdf/f8332.pdf

It releases the exemption to you.

FWIW: 365/2=182.5 therefor, more than 1/2 the year is in fact 183 days.