Tax Break For Child Support When The Child Is Still In Home Country?

[belinda63 3,039]

Correct she is neither an LPR nor a citizen who is temporarly separated from her parents. She is a foreign national who has not lived with the parent(s) for at least six months of the year in the US. There was news last tax season about how a lot of Mexican (not trying to be racist, just what the news reported) who are claiming their children that live in Mexico and obtaining the Earned Income Credit. I don't believe this is correct or legal if the child has not lived in the US for at least six months unless for a temporary absence such as school or medical needs.

[NigeriaorBust 4,087]

They make an exception for Canada and Mexico because of the number of people that legally work one side of the border and live on the other.

[NickD 203]

Never had this problem, as a guy and one heck of a court battle, managed to get full physical custody of my kids. Then happened to meet this wonderful woman with a daughter, same thing, one heck of a court battle so she could bring her daughter her with full custody. While she was living with me during that long period during the AOS, could legally claim her as a dependent, even without an SS number.

Any possibility of bringing that child here? You don't know until you try. In both of these cases, other parent wasn't the least bit interested in proper care of that child, just wanted that child support money.

Even with a child, and in the 20% tax bracket, only paying two bucks a day in less taxes, try and raise a kid of less than two bucks per day. In laying out around 25,000 bucks per year to send her to college, we could only deduct $4,000.00 of that expense.

[slowlyman 118]

Correct she is neither an LPR nor a citizen who is temporarly separated from her parents. She is a foreign national who has not lived with the parent(s) for at least six months of the year in the US. There was news last tax season about how a lot of Mexican (not trying to be racist, just what the news reported) who are claiming their children that live in Mexico and obtaining the Earned Income Credit. I don't believe this is correct or legal if the child has not lived in the US for at least six months unless for a temporary absence such as school or medical needs.

Mexico & Canada are exempt from the residency requirement.

[rin and john 71]

You are wrong on the his issue.

The OP states that the child is his Thai wife's child.

In order for her to be a qualified tax dependent, the daughter must be a US citizen or national, or a resident of the US, Canada, or

http://www.irs.gov/uac/A-Qualifying-Child

Did you are the word "usually?" It doesn't mean always. It means that children usually have the sme residence as the parent because they are living together.

Read page 12 of IRS Publication 501. Read the part about the US citizenship or Residency requirement. The exception is for adopted children.

Children of US citizen expats are US citizens and do not need to meet the residency requirement to be claimed as tax dependents.

Please be aware of the difference tax treatment for US citizens versus LPRs.

His wife is a resident. She has the same status as him when it comes to the IRS. So her child, if qualified as a dependent can be included on their joint return. I did not use the word "usually" of my own accord. It is a direct quote from the IRS publication (therefore the quotation marks). Since his wife is a "resident" in the eyes of the IRS, her child is as well. Her child must reside with her for more than six months of the year, but exceptions exist if the child is absent. Education is one of the exceptions.

I have read through reams of info on the subject. Talked with three separate IRS advisors on their hotline. One said yes, one said no, one said maybe, try it and they will either approve or not. Nothing fraudulent about filing and claiming her as a dependent as Slowlyman said it is clear as mud. Worst case scenario is they don't allow the dependent and adjust your return. They are not going to press criminal charges.

I look at it this way. If he married her and lived in Thailand and the child lived with them he could file a joint tax return (doing so his wife would have to file as a resident of the US even though she has never been here and her income in Thailand would be subject to US tax) and claim the child as a dependent. A child does not have to be your natural child to be counted as a dependent. Stepchildren count the same as your natural born children.

Being a tax "resident" and a LPR are entirely separate issues.

My wife and I married in 2006. She first arrived in the US in April 2007 and her children in September 2007. For 2006, I filed jointly and declared her as a resident for tax purposes even though she had never set foot in the US. I filed an amended return for 2006 claiming her children who also had never set foot in the USA. Both were accepted.

[NigeriaorBust 4,087]

Their child totally fails the residency test

Residency Test

To meet this test, your child must have lived with you for more than half the year. There are exceptions for temporary absences, children who were born or died during the year, kidnapped children, and children of divorced or separated parents.

Temporary absences. Your child is considered to have lived with you during periods of time when one of you, or both, are temporarily absent due to special circumstances such as:

• Illness,

• Education,

• Business,

• Vacation, or

• Military service.

Your child is also considered to have lived with you during any required hospital stay following birth, as long as the child would have lived with you during that time but for the hospitalization.

Children of divorced or separated parents (or parents who live apart). In most cases, because of the residency test, a child of divorced or separated parents is the qualifying child of the custodial parent. However, the child will be treated as the qualifying child of the noncustodial parent if all four of the following statements are true.

1. The parents:

   1. Are divorced or legally separated under a decree of divorce or separate maintenance,

   2. Are separated under a written separation agreement, or

   3. Lived apart at all times during the last 6 months of the year, whether or not they are or were married.

2. The child received over half of his or her support for the year from the parents.

3. The child is in the custody of one or both parents for more than half of the year.

4. Either of the following statements is true.

   1. The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (If the decree or agreement went into effect after 1984 and before 2009, see Post-1984 and pre-2009 divorce decree or separation agreement , later. If the decree or agreement went into effect after 2008, see Post-2008 divorce decree or separation agreement , later.)

   2. A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2013 states that the noncustodial parent can claim the child as a dependent, the decree or agreement was not changed after 1984 to say the noncustodial parent cannot claim the child as a dependent, and the noncustodial parent provides at least $600 for the child's support during the year.

You may talk yourself into it being ok . But you haven't shown code to support your assumption and calling the IRS is like talking to the USCIS misinformation line. The child lives with the sister and it not in a living away in a dorm situation .

[NickD 203]

I know alimony court ordered payments are tax deductible, had to provide my ex's SS number and the IRS went after her for taxes. But the state created some kind of new agency that constantly pestered me for payments, even long before these payments were due. Had to send the money to them, and not to her.

So I got her to agree to a single lump sum payment in a court of law, wrote out one big fat check and that was the end of that.

http://www.irs.gov/taxtopics/tc452.html

Am gathering if your ex is in a foreign country, you are screwed.

Now child support payments are a different issue, IRS answer is a simple no.

http://www.irs.gov/Help-&-Resources/Tools-&-FAQs/FAQs-for-Individuals/Frequently-Asked-Tax-Questions-&-Answers/Interest,-Dividends,-Other-Types-of-Income/Alimony,-Child-Support,-Court-Awards,-Damages/Alimony,-Child-Support,-Court-Awards,-Damages-1

But the USCIS is very concerned if you have to pay child support payments and even require proof with canceled checks that you are. But this assumes the child is in the USA, not even sure about if the child is abroad regarding the USCIS.

A close friend really got screwed on this issue, his wife, career army woman divorced him, court ordered his wages be garnished half of his wages, had to pay taxes on his gross, and since she was in the army, could move further than 125 miles away so never could see his kids. This did not motivate me any to get full custody of my kids. Social Services got involved and testified my kids wanted to live with me. And I wanted my kids and they wanted me. This is weird because the courts always favor the mother.

If I were you, would fight to get that kid. And at least know your money is properly supporting that kid.

[rin and john 71]

Their child totally fails the residency test

Residency Test

To meet this test, your child must have lived with you for more than half the year. There are exceptions for temporary absences, children who were born or died during the year, kidnapped children, and children of divorced or separated parents.

Temporary absences. Your child is considered to have lived with you during periods of time when one of you, or both, are temporarily absent due to special circumstances such as:

• Illness,

• Education,

• Business,

• Vacation, or

• Military service.

Your child is also considered to have lived with you during any required hospital stay following birth, as long as the child would have lived with you during that time but for the hospitalization.

Children of divorced or separated parents (or parents who live apart). In most cases, because of the residency test, a child of divorced or separated parents is the qualifying child of the custodial parent. However, the child will be treated as the qualifying child of the noncustodial parent if all four of the following statements are true.

• The parents:

  • Are divorced or legally separated under a decree of divorce or separate maintenance,

  • Are separated under a written separation agreement, or

  • Lived apart at all times during the last 6 months of the year, whether or not they are or were married.

• The child received over half of his or her support for the year from the parents.

• The child is in the custody of one or both parents for more than half of the year.

• Either of the following statements is true.

  • The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (If the decree or agreement went into effect after 1984 and before 2009, see Post-1984 and pre-2009 divorce decree or separation agreement , later. If the decree or agreement went into effect after 2008, see Post-2008 divorce decree or separation agreement , later.)

  • A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2013 states that the noncustodial parent can claim the child as a dependent, the decree or agreement was not changed after 1984 to say the noncustodial parent cannot claim the child as a dependent, and the noncustodial parent provides at least $600 for the child's support during the year.

You may talk yourself into it being ok . But you haven't shown code to support your assumption and calling the IRS is like talking to the USCIS misinformation line. The child lives with the sister and it not in a living away in a dorm situation .

And you haven't shown code either, the above is an IRS publication drawn from. Code to give guidance and is not the tax bible. The child does not have to be in a dorm. They have to be absent. Even in the above, the examples are preceded by "such as" suggesting other reasons are acceptable. So the OP could file an immigrant petition, then the reason would be waiting for approval.

Not really any assumptions. Just saying it would work based on my (and several others that I know of) experience.

[belinda63 3,039]

Just because you got away with it doesn't mean it was correct. The child must live with the parent claiming them for at least six months of the year unless they are gone for certain reasons (listed in other post). I have a court order that I get to claim my daughter alternate years and although she is a US citizen and lives in the US, because she does not live with me I must send a copy of the court order or a copy of a form giving me permission to claim her.

It is simple....the child has never resided in the US, Mexico, or Canada so the child cannot be claimed. Go to irs.gov, search "dependent" click "who can I claim as a dependent" and answer the questions. The answer is no. http://www.irs.gov/uac/Who-Can-I-Claim-as-a-Dependent%3F

Again, just because you get away with it doesn't mean it is right. Google "tax fraud" and you will see it happens to the tune of millions of dollars a year.

[aaron2020 11,651]

And you haven't shown code either, the above is an IRS publication drawn from. Code to give guidance and is not the tax bible. The child does not have to be in a dorm. They have to be absent. Even in the above, the examples are preceded by "such as" suggesting other reasons are acceptable. So the OP could file an immigrant petition, then the reason would be waiting for approval.

Not really any assumptions. Just saying it would work based on my (and several others that I know of) experience.

Just because a person has a child, it does not mean the child has the same tax resident as the parent.

I have a master in tax.

You are not interpreting the residency requirement correctly.

The IRS audits 2-4% of all returns. It's almost impossible for them to determine a child's tax resident since there is no employer or financial institution sending tax info on the child to the IRS. Usually, the IRS will only discover a problem when divorced parents both claim the child.

On your premise that a child's tax residency is with the parent, then what is the child's tax resident with divorced parents? What if the mother has primary custody and te dad has the child for 3 months of the year in another state. Would the dad be able to claim the child's tax resident is in his state? Would mom be able to also claim the child's tax resident is in her state? Would the child have tax residencies in both states?

Just because you got away with making a mistake does not make it legal.

I have seen plenty of erroneous tax returns that the IRS never detected.

Edited December 17, 2013 by aaron2020

[rin and john 71]

On your premise that a child's tax residency is with the parent, then what is the child's tax resident with divorced parents? What if the mother has primary custody and te dad has the child for 3 months of the year in another state. Would the dad be able to claim the child's tax resident is in his state? Would mom be able to also claim the child's tax resident is in her state? Would the child have tax residencies in both states?

This would most likely depend on the divorce decree and parenting plan. When I got divorced, my sixteen year old daughter lived with her mother and she had primary custody. I claimed her on my taxes as the documents from the divorce gave me that right. She did live in the same county, but not at my home.

I agree with your reading and interpretation of the tax info in the publication. Guess I just got lucky. Good that the statute of limitations has expired. As it was several thousand dollars, it was worth the risk.

[CarlosAndSveta 808]

And you haven't shown code either, the above is an IRS publication drawn from. Code to give guidance and is not the tax bible.

If you want to torture yourself here is a link to the Internal Revenue Code section that defines a dependent:

http://www.law.cornell.edu/uscode/text/26/152

[rin and john 71]

If you want to torture yourself here is a link to the Internal Revenue Code section that defines a dependent:

http://www.law.cornell.edu/uscode/text/26/152

Seen it before. It was the section below stating "resident of the United States" combined with the part in Pub 501 stating a child is usually a resident of the country of their parent. At least had I been audited and the deduction not allowed, it would have been my position.

(3) Citizens or nationals of other countries

(A) In general

The term “dependent” does not include an individual who is not a citizen or national of the United States unless such individual is a resident of the United States or a country contiguous to the United States.

[Freda /Alejandro 0]

This answered a question I had also, so thanks to everyone who gave information. I feel your pain slowlyman.

I really wish they would make a change to the IRS system for this. My husbands children live in their home country with their mother, however he pays 90% of their support and pays for 100% of his sons college and expenses. When we file our taxes it looks like we make a descent living, but the reality is about 50% of his monthly income goes to the care and support of his two children (as it should, but it would sure be nice to get a deduction for it).

[NickD 203]

Joe Louis and Willy Nelson both got in deep trouble with the IRS by using their money to help poor people. But if they gave their money to the United Way or the American Red Cross where only about 10% does any good, they would have been fine. !00% of it would be tax deductible.

We were shelling out well over $25,000 to send our last daughter to college, we could deduct $3,500 as a dependent and another $4,000 for tuition cost. Since 9/11, and sending our money to Iraq, tuition rates have more than tripled. The other $18,000.00 we shelled out for her is not tax deductible. This was after FICA taxes that all of us have to pay income taxes on that as well.

We have to send money to my mother-in-law in Colombia and unmarried son in Venezuela. Inflation in these countries is so bad, they can't afford to eat, none of this is tax deductible. But we can't let our loved ones starve!!!

Transportation to and from work is also a major expense, and without that transportation, neither of us will have work, this is also not tax deductible. Inflation rate is much greater than what little interest we are earning, but yet we have to pay taxes on that little interest.

So why are we all be quiet on these issues? There is no way of getting around with the IRS, still owe if you go bankrupt, this is the law!!!