ITIN - and child tax element

[Totallylost 0]

Without going into a long story ...

I and my little girl arrived here in January 2004. I got married in February 2004. I sent the AOS paperwork along with EAD/Advance Parole on 30th March 2004. THese were received at Atlanta on 31st March 2004. THere was a notice date of 5th May 2004.

An interview date was set up for me last year (Cant remember the exact month), then it was cancelled. Our AOS was transferred to CSC last SEptember 2005. No news yet. Our second wedding anniversary comes up at the end of February.

Last year, we (and this was our own fault for the delay) finally got an ITIN number for her, so that we could claim her as a dependent). We were told that for us to claim her as a dependent she HAD to hvae an ITIN number ..

So!! Here we are today, just having come back from Jackson Hewitt who did the filing of taxes for us, to be told that we can't claim her as a dependent - you can't claim the child tax element - you can only claim that when she's a USA Citizen!!

A USA citizen!! How long is that going to take!!! I'll be bloody retired by the time that comes along the way things are going!! We're struggling financially - and now we're having to reapply for the THIRD time for her to have advance parole. It's not as if SHE is claiming an tax rebate - my USC husband is!! After all - he's the one looking after us!!

[dcl766 0]

Without going into a long story ...

I and my little girl arrived here in January 2004. I got married in February 2004. I sent the AOS paperwork along with EAD/Advance Parole on 30th March 2004. THese were received at Atlanta on 31st March 2004. THere was a notice date of 5th May 2004.

An interview date was set up for me last year (Cant remember the exact month), then it was cancelled. Our AOS was transferred to CSC last SEptember 2005. No news yet. Our second wedding anniversary comes up at the end of February.

Last year, we (and this was our own fault for the delay) finally got an ITIN number for her, so that we could claim her as a dependent). We were told that for us to claim her as a dependent she HAD to hvae an ITIN number ..

So!! Here we are today, just having come back from Jackson Hewitt who did the filing of taxes for us, to be told that we can't claim her as a dependent - you can't claim the child tax element - you can only claim that when she's a USA Citizen!!

A USA citizen!! How long is that going to take!!! I'll be bloody retired by the time that comes along the way things are going!! We're struggling financially - and now we're having to reapply for the THIRD time for her to have advance parole. It's not as if SHE is claiming an tax rebate - my USC husband is!! After all - he's the one looking after us!!

Hi,

Unless I am totally wrong, you should be able to claim your child as a dependent whether she is a US citizen or not, as long as she meets the residency requirement. I am not sure about the child tax credit, but I was just reading the IRS website and I think they may be wrong on that too. I did my preliminary return on Turbo Tax and from what I read it is no problem to claim as a dependent. I would check with another tax preparer about the additional child tax credit though.

http://www.irs.gov/taxtopics/tc354.html

http://www.irs.gov/taxtopics/tc851.html

http://www.irs.gov/formspubs/article/0,,id=109876,00.html (new definition of a qualifying child partially extracted below)

Uniform Definition of a Qualifying Child

Beginning in 2005, one definition of a qualifying child will apply for each of the following tax benefits.

Dependency exemption.

Head of household filing status.

Earned income credit (EIC).

Child tax credit.

Credit for child and dependent care expenses.

Tests To Meet

In general, all four of the following tests must be met to claim someone as a qualifying child.

Relationship test.

The child must be your child (including an adopted child, stepchild, or eligible foster child), brother, sister, stepbrother, stepsister, or a descendent of one of these relatives.

An adopted child includes a child lawfully placed with you for legal adoption even if the adoption is not final.

An eligible foster child is any child who is placed with you by an authorized placement agency or by judgement, decree, or other order of any court of competent jurisdiction.

Residency test.

A child must live with you for more than half of the year. Temporary absences for special circumstances, such as for school, vacation, medical care, military service, or detention in a juvenile facility count as time lived at home. A child who was born or died during the year is considered to have lived with you for the entire year if your home was the child's home for the entire time he or she was alive during the year. Also, exceptions apply, in certain cases, for children of divorced or separated parents and parents of kidnapped children.

Age test.

A child must be under a certain age (depending on the tax benefit) to be your qualifying child.

http://www.irs.gov/publications/p972/ar02.html#d0e195 (partially extracted below)

Child Tax Credit

This credit is for people who have a qualifying child as defined on this page. It is in addition to the credit for child and dependent care expenses (on Form 1040, line 48, or Form 1040A, line 29) and the earned income credit (on Form 1040, line 66a, or Form 1040A, line 41a).

The maximum amount you can claim for the credit is $1,000 for each qualifying child.

Qualifying Child

A qualifying child for purposes of the child tax credit is a child who:

Is your son, daughter, stepchild, foster child, brother, sister, stepbrother, stepsister, or a descendant of any of them (for example, your grandchild),

Was under age 17 at the end of 2005,

Did not provide over half of his or her own support for 2005,

Lived with you for more than half of 2005. (see Exceptions to “time lived with you” condition below), and

Was a U.S. citizen, a U.S. national, or a resident of the United States. If the child was adopted, see Adopted child below.

For each qualifying child you must either check the box on Form 1040 or Form 1040A, line 6c, column (4), or complete Form 8901 (if the child is not your dependent).

Adopted child. An adopted child is always treated as your own child. An adopted child includes a child lawfully placed with you for legal adoption.

If you are a U.S. citizen or U.S. national and your adopted child lived with you all year as a member of your household in 2005, that child meets condition (5) above to be a qualifying child for the child tax credit.

Exceptions to “time lived with you” condition. A child is considered to have lived with you for all of 2005 if the child was born or died in 2005 and your home was this child's home for the entire time he or she was alive. Temporary absences for special circumstances, such as for school, vacation, medical care, military service, or business, count as time lived with you.

I am not an accountant, tax preparer or attorney, just another VJer with similar problems trying to help!!

Good Luck!

Dave

[allynella 0]

I found this on the IRS website...

Valid Social Security Number for a Qualifying Child

Your qualifying child must have a valid social security number (SSN), unless the child was born and died in 2005. You cannot claim the EITC on the basis of a qualifying child if:

Your qualifying child's SSN is missing from your tax return or is incorrect,

Your qualifying child's social security card says "Not valid for employment" and was issued for use in getting a federally funded benefit such as Medicaid, or

Instead of an SSN, your qualifying child has:

An individual taxpayer identification number (ITIN), which is issued to a noncitizen who cannot get an SSN, or

An adoption taxpayer identification number (ATIN), which is issued to adopting parents who cannot get an SSN for the child being adopted until the adoption is final.

If you have two qualifying children and only one has a valid SSN, you can claim the EITC only on the basis of that child. If you have one or more qualifying children, but you do not have a child with a valid SSN, you cannot claim the EITC using those children.

[dcl766 0]

Where's that IRS link? Are you talking about the Earned Income Tax Credit or Child Tax Credit? I think they are 2 different things. I think Karenina108 is looking for the Child Tax Credit.

I found this on the IRS website...

Valid Social Security Number for a Qualifying Child

Your qualifying child must have a valid social security number (SSN), unless the child was born and died in 2005. You cannot claim the EITC on the basis of a qualifying child if:

Your qualifying child's SSN is missing from your tax return or is incorrect,

Your qualifying child's social security card says "Not valid for employment" and was issued for use in getting a federally funded benefit such as Medicaid, or

Instead of an SSN, your qualifying child has:

An individual taxpayer identification number (ITIN), which is issued to a noncitizen who cannot get an SSN, or

An adoption taxpayer identification number (ATIN), which is issued to adopting parents who cannot get an SSN for the child being adopted until the adoption is final.

If you have two qualifying children and only one has a valid SSN, you can claim the EITC only on the basis of that child. If you have one or more qualifying children, but you do not have a child with a valid SSN, you cannot claim the EITC using those children.

[allynella 0]

Oh, didn't see that! My bad... Info given was for EITC.

Edited February 1, 2006 by allynella

[Crazy_Brit 0]

on the IRS site is says the child should be a resident, not a permanent resident or lawful resident just that they reside in the USA which she does and I know Karen personally and I know her daugther has a TIN at the end of the day she is dependant on the US tax payer! I think you were told wrong Karen,

Crazy Brit

[Totallylost 0]

OK I've now scoured the IRS site and nowhere does it say anything about being a "permanent' resident. From what I've read, one of the requirements must be that she either has to be a US Citizen OR a Resident.

We've been here since January 2004 so from what I can see then she meets the "substantial presence" test (as classed by the IRS for tax purposes).

The other thing that's annoying me is this. Last year when we sent in an amended tax return, we were told that we could only claim for my daughter if she had an ITIN. An ITIN is not a SS number, it is only used for tax purposes. So why would they issue her with an ITIN if there was no use for it???!!!

dcl766- yes it's the Child TAx Credit that I'm talking about.

As Crazy_Brit has said " ... she is dependent on the US tax payer".

I can see I'm going to be on the phone for most of the day!!

[Shari 6]

Karenina108 posted "Residency test. A child must live with you for more than half of the year. . . . "

I guess this is clear, so why I am asking, but to be 100% sure, if my husband and step-son (age 18) moved here on September 8, 2005 I cannot claim EITHER one on my 2005 taxes? Can I still filed married?

[Totallylost 0]

Karenina108 posted "Residency test. A child must live with you for more than half of the year. . . . "

I guess this is clear, so why I am asking, but to be 100% sure, if my husband and step-son (age 18) moved here on September 8, 2005 I cannot claim EITHER one on my 2005 taxes? Can I still filed married?

Shari - you would still file married because you are married! (i.e married filing jointly). However, from my understanding of the IRS requirements, your step-son would either have to qualify as a "green card" holder or fulfil the "substantial presence".

Now bear in mind that this is just MY understanding of what I've read on the IRS site.

Anyway from what I've just read, again, the person who did our taxes yesterday gave very WRONG advice and that WRONG advice cost us $100. I argued my point with her yesterday and she just wouldn't have any of it! OK .,.. back to the phone!!

[Yodrak 7]

Shari,

You can never "claim" your husband (as a deduction) in any event, but if you married him before the end of 2005 you can not only file as Married, you and he can also file a joint return to take advantage of the lower tax rate that applies to married couples, and take his exemption.

In exchange for this, he must report his world-wide income for 2005, but in most cases this income can either be excluded as foreign-earned income or, if there is a tax treaty between the USA and his country, he can get credit for the tax already paid to the other country. You'll have to 'run the numbers' to see if there is a benefit to filing Married-Joint rather than Married-Single - for most people there is.

As for the son, check the rules for eligible dependents in the 1040 instructions.

Yodrak

Karenina108 posted "Residency test. A child must live with you for more than half of the year. . . . "

I guess this is clear, so why I am asking, but to be 100% sure, if my husband and step-son (age 18) moved here on September 8, 2005 I cannot claim EITHER one on my 2005 taxes? Can I still filed married?

Edited February 1, 2006 by Yodrak

[dcl766 0]

OK I've now scoured the IRS site and nowhere does it say anything about being a "permanent' resident. From what I've read, one of the requirements must be that she either has to be a US Citizen OR a Resident.

We've been here since January 2004 so from what I can see then she meets the "substantial presence" test (as classed by the IRS for tax purposes).

The other thing that's annoying me is this. Last year when we sent in an amended tax return, we were told that we could only claim for my daughter if she had an ITIN. An ITIN is not a SS number, it is only used for tax purposes. So why would they issue her with an ITIN if there was no use for it???!!!

I agree completely. The IRS site does not give a detailed definition of a "resident" anywhere for dependents, only for those filing taxes via the green card test or substantial presence test. So we are left to assume that a dependent child is defined this way as well.

I am heading over to a Jackson Hewitt office tonight to see about applying for an ITIN for Carina and see what kind of price they will do the taxes for. Should be interesting:)

Karenina108, what did they charge the $100 for? Also, could the rep point out to you the rule in the IRS manual that states the dependent must be a US citizen? I would ask for a supervisor or ask them to call the IRS helpline while you are there to get the correct answer, especially if they charged you $100.

When I go to an office tonight which is considered an "IRS acceptance agent authorized to accept ITIN apps on behalf of the IRS" as I am hoping to get the ITIN filed without having to ship off Carina's original passport to the IRS office in Philadelphia (per the W7 instructions) that processes ITIN applications and also hopefully file our return at a reasonable price. I mean, I'm only getting $800 back ($300 if we can't claim Carina), so I'm not giving anybody any money if I can't claim her!!

Dave

[Yodrak 7]

Karenina,

Read what you wrote again - there is a use for the ITIN. The use is for tax purposes when a person is not eligible for a SSN, so that the person can be listed on the tax return as a dependent (or a a joint filer, as the case may be).

Yodrak

...

The other thing that's annoying me is this. Last year when we sent in an amended tax return, we were told that we could only claim for my daughter if she had an ITIN. An ITIN is not a SS number, it is only used for tax purposes. So why would they issue her with an ITIN if there was no use for it???!!!

...

Dave,

Page 19 of the 1040 instructions?

Yodrak

I agree completely. The IRS site does not give a detailed definition of a "resident" anywhere for dependents, only for those filing taxes via the green card test or substantial presence test. So we are left to assume that a dependent child is defined this way as well.

....

Dave

[Totallylost 0]

Here's the update:-

Ive spoken directly with the IRS - and explained the full situation. I was asked:-

1. is she your biological daughter?

2. Is she under the age of 17?

3. Was she here for half of 2005?

4. Has she income of her own or has she been supported by you/your husband entirely?

5. Do we owe any taxes or are we getting a refund?

I told her that we do not owe any tax and that we are due a refund. IN this case she said that we could be entitled to the Additional Child Tax Credit. I was told to go through first of all the worksheet/instructions for the 1040 and then to complete Form 8812: Additional Child Tax Credit. And then to complete Form 1040X.

I was told that she doesn't have to be a US Citizen. She told me from the replies I had given her that my daughter is classed as a Resident.

I've also tried to phone Jackson Hewitt, I was put through to a Customer Service Rep (surprise suprise!) ... so, next step I think is to go back in person to Jackson Hewitt and take it up with them.

dcl766 - when we applied to do an amended tax return last year (i.e 1040x) we couldn't add our daughter then as she didn't hvae her ITIN. We followed the instructions and sent off her passport. IT took almost three months to get her passport back and when I phoned to find out where it was - I was told "You should never have sent her original passport - you could have just sent a notorised copy!". THe ridiculous thing is that I sent them a notorised copy and then they wrote back saying they wanted her original!!

Hope you can all understand what I"m typing here because I"m completely braindead at the moment!!

[dcl766 0]

Thanks for checking with the IRS Kareinina, and also the heads up about Carina's passport. Yep, that's why I would rather go through an IRS acceptance agent. The thing about the notarized copies is that most states (including Illinois where I am) do not allow notaries to notarize anything but a signature. They are not allowed to notarize copies of documents. The IRS instructions for the ITIN say a certified copy is also acceptable....yea, good luck getting a passport certified! I probably have to go to Moldova or an embassy in Washington for that too!

I think the IRS is giving immigration a run for their money in wasting our time....also think it's interesting that USCIS lets us send photocopies of passports, etc, but the IRS won't take them so we can claim a dependent so we can file our stupid taxes! What a system!!

By the way, I went to Jackson hewitt and the wait was too long so I just made an appointment for Saturday. All I know is that if I have to mail the passport I will just pass on applying for the ITIN and take the loss on the exemption and then hopefully Carina's namecheck will come back and she'll have her green card in time for next year.

Thanks again, Dave

Here's the update:-

Ive spoken directly with the IRS - and explained the full situation. I was asked:-

1. is she your biological daughter?

2. Is she under the age of 17?

3. Was she here for half of 2005?

4. Has she income of her own or has she been supported by you/your husband entirely?

5. Do we owe any taxes or are we getting a refund?

I told her that we do not owe any tax and that we are due a refund. IN this case she said that we could be entitled to the Additional Child Tax Credit. I was told to go through first of all the worksheet/instructions for the 1040 and then to complete Form 8812: Additional Child Tax Credit. And then to complete Form 1040X.

I was told that she doesn't have to be a US Citizen. She told me from the replies I had given her that my daughter is classed as a Resident.

I've also tried to phone Jackson Hewitt, I was put through to a Customer Service Rep (surprise suprise!) ... so, next step I think is to go back in person to Jackson Hewitt and take it up with them.

dcl766 - when we applied to do an amended tax return last year (i.e 1040x) we couldn't add our daughter then as she didn't hvae her ITIN. We followed the instructions and sent off her passport. IT took almost three months to get her passport back and when I phoned to find out where it was - I was told "You should never have sent her original passport - you could have just sent a notorised copy!". THe ridiculous thing is that I sent them a notorised copy and then they wrote back saying they wanted her original!!

Hope you can all understand what I"m typing here because I"m completely braindead at the moment!!

[de_sjiem 0]

actually, you can send in a photocopy of your passport, it just has to be notarized.. but you can also go get your ITIN (tax assistance places,and i forget the other one.. but its in the info somewhere..)