Tax Issues - Dependents and Divorce

TAX ISSUES RELATING TO DEPENDENTS AND DIVORCE

I. DEPENDENT EXEMPTIONS
A. When can a person be claimed as a dependent on a tax return?

In order to claim a person as a dependent, the person must meet all five of the following tests:

1. Member of Household or Relationship;
2. Joint Return test;
3. Citizen or resident test;
4. Gross Income test; and
5. Support test.

1. Member of Household or Relationship Test - a person must be either
a. related, OR
b. If the person is not related as defined, he/she must have lived in the home all year.  Persons who died during the tax year but lived with the taxpayer until death will still qualify as having lived all year with the taxpayer.  Temporary absences because of illness, education, business, vacation or military service will not defeat this test.
a. "Related" people do not need to be members of the household for the entire year. "Related" is defined by the IRS as: i. child, step-child, son-in-law, daughter-in-law; grandchild, great-grandchild, ets.;
ii. mother, father, stepmother, stepfather, mother-in-law, father-in-law;
iii. grandparent, great-grandparent, etc.;
iv. brother, sister, half-brother, half-sister, step-brother, step-sister, brother-in-law, sister-in-law; and,
v. if related by blood, uncle, aunt, nephew and niece.

Note the exception of "cousin". A cousin must meet the "member of the household all year" test.

Also note that any relationship established by marriage is not ended if the marriage ends.
i. "Child" is defined as
(a) natural or legally adopted (even if adoption was not yet final and the child was placed by an authorized placement agency) son or daughter, or step-son or step-daughter;
(b) a child who lived in the home as a member of the family all year if placed there by an authorized placement agency for legal adoption; or
(c) a foster child if he/she lived there as a member of the family all year and no compensation (qualified foster care payment) was earned for caring for that child.
b. Member of the Household- If the person is not related as defined, he/she must have lived in the
home all year. Persons who died during the tax year but lived with the taxpayer until death will still qualify as having lived all year with the taxpayer. Temporary absences because of illness, education, business, vacation or military service will not defeat this test.

"A person does not meet the member of the household test if at any time during the tax year the relationship between you and that person violates local law."

2. Joint Return Test

In order to be claimed as a dependent, the person must not have filed a joint income tax return with his/her spouse unless neither the person nor his/her spouse was required to file a return (such as income too low to be taxed) and a return was filed in order to get refunds due.

3. Citizen or Resident Test

A person must be a resident or citizen of the U.S., or a resident of Canada or Mexico for some part of the calendar year. Children are usually citizens or residents of the country of their parents. If a child was born to a US citizen and a non-resident alien abroad and all other dependency tests are met, even if the child lives abroad with the other parent, the child can be taken as a dependent.

4. Income Test

There are two different ways of meeting the test:
a. the person must have less than $3,000 in gross income for calendar year 2002 (gross income does not include nontaxable income like Social Security benefits, income from a sheltered workshop or public assistance) OR
b. the person is both
i. a "child" AND
ii. either
(a) under age 19 at the end of the year OR
(b) for some part of each of five calendar months (not necessarily consecutive) during the year, a "full-time student" and under age 24 as of the end of the year.

"Full-time Student" is defined as being enrolled at a school with a regular teaching staff and course of study and a regularly enrolled body of students in attendance and the school considers the person's attendance as full-time study. School does not include on-the-job training courses, correspondence schools or night schools. Vocational education will qualify if the total of work plus school is the equivalent of full-time attendance.

5. Support Test

a. The general rule: The person claiming the deduction must have contributed over one-half of the person's support in order to claim him/her as a dependent. The exceptions to the general rule are the Multiple Support Agreement and the test for Divorced and Separated individuals, below.

In figuring the person's total support for the whole year, the person's support of himself, through even nontaxable sources such as gifts, loans, savings and welfare benefits, must be included. Students do not, however, include scholarship funds in their income. Support includes food, housing, clothing, health care needs, recreation and education. The actual cost of the items, or the fair market value, is used. Do not include in the person's income amounts they paid out in Medicare, Social Security or income taxes (federal, state and local), funeral expenses or life insurance premiums.

b. Special rules for divorced or separated individuals
This special rule only applies if all three of the following are met:
i. parents were divorced or legally separated (under a decree of divorce or legal separation), were separated under a written separation agreement or lived separate and apart at all times during the last 6 months of the calendar year; AND
ii. one or both parents provided over one-half of the child's total support during the calendar year;AND 
iii. one or both parents had custody of the child for more than half of the calendar year.

These special rules do not apply if someone other than a parent provided more than one-half of the child's support during the calendar year (except a step-parent) or the child is under a Multiple support Agreement, the child was in the custody of someone other than the parents for half of the year or more, or the parents file a joint return although they were separated under a decree of legal separation or lived apart.

Custodial Parent-under the special rule, the parent who had custody of the child for the greater part of the year is considered to be the child's custodial parent and is generally treated as the person who provided more than half of the child's support.

The custodial parent, thus defined, is usually allowed to claim the child as a dependent if all of the other four dependency tests above are met. If the decree did not specify which parent is the custodial parent, then the parent who had physical possession of the child for the greater part of the year is considered to be the custodial parent. This also applies to what the IRS calls a "split" custody arrangement or if the validity of an agreement or decree is uncertain due to legal proceedings pending on 12/31.

If the parents are divorced or separated during the year and had joint custody prior to the decree or separation, the parent who had custody for the greater part of the rest of the year is considered to be the custodial parent.

Noncustodial Parent-Under the special rule, the parent who did not have custody, or had it for the shorter period of time, is treated as the parent who gave more than half of the child's support if:
i. the custodial parent signs a Form 8332 (copy attached to these materials) OR
ii. the custodial parent signed a decree or agreement after 1984 stating that he/she would not claim the child as a dependent and the noncustodial parent can claim the child without regard to any condition such as payment of support and the noncustodial parent attaches the decree or agreement to the return OR
iii. a decree or written agreement made before 1985 provides that the non-custodial parent can take the exemption and the non-custodial parent provided more than $600 per year in child support (unless the decree or agreement was modified after 1984 to provide that this section shall not apply). Form 8332-Can be used for a single year or several years.

Multiple Support Agreement - Sometimes two or more people provide over half of a person's support, but no one person alone provides more than half of the person's support. In this case, a Multiple Support Agreement (Form 2120, attached) is used for persons who provide more than 10% of the person's support, who meet all other test except the support test, and all the other people who contributed to the person's support sign the Form 2120.

B. How much is the exemption amount? How much is it worth?

The dollar amount per dependent in 2005 was $3,200 and in 2006 it will be $3,250. In real dollars:

For a parent in the 10% bracket, the federal tax savings is $320 ($3,200 times 10%); for a parent in the 25% bracket, the savings is $800 ($3,200 times 25%).

There is a phase out of exemptions for high income taxpayers. There is a worksheet for the phase out for incomes under the top amount, when some part of the exemption amount will apply. For 2005, $145,950 for single, $182,450 for head of household and $218,950 for married joint. The dollar amount of the exemption is reduced by 2% for each $2,500 that AGI exceeds the threshold amount. Thus the deduction for the personal exemption is totally eliminated if AGI exceeds the threshold amount by $122,500 or more.

II. MEDICAL EXPENSE DEDUCTION

A. Child - Even if a parent cannot claim a child as a dependent, he/she can still deduct the health care expenses he/she actually paid for the child, including insurance premiums. If there is a Multiple Support Agreement, however, only the person claiming the person as a dependent can claim the medical expenses he/she paid. All health care expenses must exceed 7.5% of a person's AGI in order to be deductible. See Schedule A attached to these materials.

B. Spouse - if the decree or agreement states that the payor spouse pays the payee spouse's medical costs directly to the health care provider or pay health insurance premiums for a period of time, this is a third party payment "on behalf of a spouse" and is treated as alimony or spousal support, and therefore deductible by the payor and includible by the payee as income.

III. HEAD OF HOUSEHOLD FILING STATUS

In order to claim Head of Household filing status, a person must meet all three tests:

A. Considered Unmarried test;
B. Qualifying person test; and
C. Keeping up a Home test.

A. Considered Unmarried test - a person is considered unmarried if he/she meets any of the following tests:

1. He/she files a separate return (not a joint return) OR
2. He/she is unmarried (single) as of 12/31 OR
3. He/she is legally separated as of 12/31 OR
4. He/she did not live with a spouse during the last 6 months of the year.

B. Qualifying Person Test - in order to claim Head of Household filing status, a person must have a qualifying person living with him/her. The qualifying person can be either:

1. an unmarried child (even if the person cannot claim the child as a dependent because the Form 8332 gives it to the other parent or a pre-1985 agreement gave it to the other parent who pays more than $600 in child support rules), OR
2. an unmarried foster child if he/she meets all other dependent tests OR
3. a married child if he/she qualifies as a dependent under all 5 tests.

There is a special rule for mothers and fathers being considered as a qualifying person of the taxpayer - if the parent does not live with the person seeking to claim him/her as a qualifying person, and the person pays more than half of the cost for keeping up the home where the parent lived all year, the status as qualifying person is met.

C. Keeping up a Home Test - see the cost of maintaining a household worksheet attached to these materials. Any child support paid is considered to be the recipient's own contribution to keeping up the home. The test is met if the person paid more than half of the cost of keeping up the home (including rent, mortgage interest paid, real estate taxes, home insurance, repairs, utilities and food eaten in the home) for the qualifying person.

IV. LEGAL EXPENSES

Legal expenses are reportable and deductible on Schedule A under Miscellaneous Deductions (line 22) with a 2% of AGI floor.

Generally, divorce is a personal (non-business) matter and only fees which are related to the production of taxable income or the determination, collection or refund of any tax, are allowed to be deducted. But fees spent for the collection of alimony, as well as fees paid to appraisers, actuaries and accountants for services in determining the correct amount of tax or in helping to get alimony are deductible.

An attorney must make a reasonable allocation of legal fees charged incident to deductible advice. Evidence of a reasonable allocation may consist of an attorney's opinion, reliable time records or a history of tax and investment advice given before the marital problems arose.

Reasons for keeping detailed time logs are: (1) it makes it easier to explain and justify fees to the client; (2) it is easier to prepare an application to the Court for fees to be awarded from the other party; (3) it ensures that proper charges are made for time spent and giving this information to the
client insures greater understanding and quicker payment on the part of client; and (4) assists in compliance with ethical codes regarding the charging of fees (and if broughtbefore any disciplinary body, the attorney can easily explain and have any fee dispute resolved more painlessly).

Legal fees may also be used as an addition to the basis of property received in a divorce or legal separation (if property is divided therein) for services such as preparing and filing a deed.

V. EARNED INCOME CREDIT

Earned income credit is "extra money" which is available to working taxpayers meeting certain requirements. There are now two different EICs: one for persons with a qualifying child or children, and one for persons without a qualifying child.
A. Persons who work and do not have a qualifying child must meet all of the following in order to claim EIC:
1. have earned income during the calendar year (even if it is not taxable);
2. earned income and AGI less than $11,060 for 2002;
3. return covers a 12-month period;
4. filing status is anything but married filing separately;
5. cannot be the qualifying child of another person;
6. must be at least age 25 but under age 65 before 12/31;
7. cannot be eligible to be claimed as a dependent on anyone else's tax return;
8. residence must be in the U.S. for more than half of the year;
9. no foreign earned income;
10. investment income dividends, capital net income and taxable or tax-exempt interest less than $3,000;
11. have a valid SSN; AND
12. not be a non-resident alien for any part of the year (unless married to a U.S. citizen or resident alien and choose to be treated as a resident for the entire year).
B. Persons who work and have one or more qualifying children must meet all of the following in order to claim EIC:
1. have a qualifying child who lived with him/her for more than half of the year (all year for a qualifying foster child);
2. have earned income in the calendar year;
3. have earned income and AGI of less than $31,030 in 2005 for one child, or less than $35,263 in 2005 if more than on qualifying child;
4. his/her return covers a 12-month period;
5. filing status is anything but married filing separately;
6. cannot be the qualifying child of another person;
7. the qualifying child cannot be the qualifying child of anyone else (if so, only the person who had the higher AGI is entitled to claim the child as his/her qualifying child);
8. usually must claim the child as a dependent (but see later discussion);
9. no foreign earned income;
10. investment income dividends, capital net income and taxable or tax-exempt interest less than $2,350;
11. have a valid SSN; AND
12. not be a non-resident alien for any part of the year (unless married to a US citizen or resident alien and choose to be treated as a resident for the entire year).

Married persons living apart can still claim EIC if they qualify for Head of Household filing status and lived separate and apart for the last 6 months of the calendar year, the person paid more than one-half of the cost of keeping up a home and the home was the main home of the child.

If the person cannot claim the child as an exemption because of Form 8332 or post-1984 decree or agreement pre-1985 agreement and $600 per year child support gives the exemption to another parent, he/she can still claim EIC if all other criteria are met.

1. Qualifying child is defined by three tests:
a. Relationship test;
b. Residency test; and
c. Age test
a. Relationship test 
1. Related
(a) "child"
(i) son, daughter, step-son, step-daughter, adopted child, grandchild, or
(ii) eligible foster child (lived with taxpayer all year, person cared for the child as if he/she was taxpayer's own child), or
(iii) married child (if can claim the child as a dependent or if cannot claim as a dependent because of Form 8332 or post-1984 decree or agreement or pre-1985 agreement and $600 child support, but all other dependency tests are met)

AND

(b) "qualifying" because
(i) under age 19 OR
(ii) under age 24 and a "student" OR
(iii) disabled and lived with the taxpayer more than half of the tax year.
b. Residency test - child must have lived with the person in his/her home for more than half of the year (eligible foster child must be in the home all year) and the home must be in the United States. Military personnel stationed outside of the U.S. on extended active duty more than 90 days are considered to live in the U.S. during that duty. There is no requirement that a person claim the qualifying child as a dependent in order to claim Earned income Credit.
c. Age test - one of the following must be met:
i. child is under age 19 at the end of the year; OR
ii. child is a full-time student and under age 24 at the end of the year (full-time student is defined the same as for the support test above); OR
iii. the child must be permanently and totally disabled, regardless of age, defined as being unable to engage in any substantial gainful activity because of his/her physical or mental condition AND the
condition must have lasted, or be expected to last, more than 12 months continuously, or to result in death.

VI. CHILD AND DEPENDENT CARE CREDIT

A. Qualification for the Credit

In order to claim the Child and Dependent Care Credit, all of the following tests must be met:

1. Qualifying person test;
2. Keeping up a home test;
3. Earned income test;
4. Work-related expense test;
5. Joint return test;
6. Provider ID test;
7. Payments to relatives test; AND
8. Dollar Limits test.

NOTE - There is NO requirement of claiming the child as a dependent in order to claim the child care credit,

1. Qualifying person test - there are three ways to qualify:
a. first method: the person must be either
i. under age 13 when the care was provided and eligible to be taken as a dependent (unless pre-1985 agreement and $600 in child support paid OR post-1984 decree or agreement OR Form 8332); OR
ii. a disabled spouse not able to care for him/her self; OR a disabled person not able to care for him/her self who can be claimed as a dependent (or could be claimed as a dependent except that the person had income of $3,000 or more);
b. second method for divorced/separated parents:
i. the parent claiming the credit had custody longer than the other parent in the calendar year; AND
ii. one or both parents provided more than half of the child's support during the year; AND
iii. one or both parents had custody of the child for more than half of the year; AND
iv. the child was under age 13 at the time care was provided or the person was disabled; AND
v. the other parent claims the child as a dependent (pre-1985 and $600, or Form 8332 or post-1984 decree or agreement).

2. Keeping up a Home Test - The taxpayer pays more than half of the cost of running the home for the qualifying person for the year, including rent, home insurance, property taxes, mortgage interest, utility bills, home repairs and food eaten at home. Costs not included in determining this test are clothing, education, medical treatment, vacations, life insurance, transportation, mortgage principal, etc.

Amounts received from the state as public assistance do NOT count as the taxpayer's contributions to keeping up the home. Child support payments DO count as the taxpayer's contributions.

3. Earned Income test - the person must have earned income, which includes wages, salaries, tips, self-employed income, strike benefits, and disability pay reported as taxable income, but does NOT include pension payments, annuity payments, social security benefits, worker's compensation benefits, unemployment benefits, scholarships and fellowships, non-taxable employee compensation (like meals and lodging for the employer's convenience), certain military payments (such as basic quarters, combat zone pay).

4. Work-Related Expense test - the expense for care of children or dependents must be related to the taxpayer's work or efforts at looking for work, and must be incurred at the time that the taxpayer was working or looking for work.

5. Joint Return test - Usually married persons must file jointly in order to claim the child and dependent care credit. However, if the people lived separate and apart for at least the last six months of the year and file separately, the person claiming the credit did have the qualifying person in his/her home for at least one-half of the year, and the person pays more than half of the cost of keeping up the home for the qualifying person, then the married person can claim the child and dependent care credit.

6. Provider ID test - the taxpayer must report the name, address and taxpayer identification number of the provider of the child or dependent care. If the SSN of the provider is missing, the taxpayer must show due diligence in attempts to discover the providers taxpayer ID number.

7. Payments to Relatives test - payments made to relatives providing care for children or dependents can be claimed for the credit as long as the providers are not dependents of the taxpayer or are not the taxpayer's children under age 19 even if the provider is not the taxpayer's dependent.

8. Dollar Limits test - The taxpayer can claim expenses up to $3,000 for one qualifying person in 2005 per year or up to $6,000 in 2005 for more than one qualifying person per year. Employer-provided funds further reduce these limits. See Form 2441.

B. What costs are included in the credit?

In addition to traditional babysitting or day care, the child and dependent care credit can include the costs of sending a child who is in a grade level below the first grade to school as long as the cost of schooling is incidental to the care provided and cannot be separated from the cost of care.

The credit can also cover the cost of household services if part of the cost for the services is the cost of care for the dependent person.

The credit cannot be claimed for the cost of overnight camps or costs of transportation to and from the care facility.

VII. CHILD TAX CREDIT

A. What is this credit?

Beginning in 1998, a new tax credit was available for taxpayers with qualifying children. In 2002 the credit was $600 for each child and rose to $1,000 per child.

B. Who qualifies?

For child tax credit purposes, a qualifying child is:

1. Under age 17 as of 12/31; AND
2. A citizen or resident alien of the United States; AND
3. A dependent of the taxpayer; AND
4. The taxpayer's son, daughter, stepson, stepdaughter, grandchild, great-grandchild, etc. or eligible foster child (a child cared for as the taxpayer's own, and lived with the taxpayer all year).

C. What reduces the credit?

The amount of credit available is reduced if the taxpayer's modified (by including foreign earned income otherwise excluded) gross income is above certain levels. For a taxpayer filing married separately, the threshold amount is $55,000; for married joint filers, the threshold is $110,000; and for a single, head of household or qualifying widow(er) the threshold is $75,000.

D. What is Additional Child Tax Credit?

There is an additional child tax credit available for persons with more than three qualifying children and the amount of the child tax worksheet is more than the amount of tax shown on the return. This can result in a refund over and above the amounts withheld or estimated and paid in. See the worksheets and Form 8812 attached.

You must claim the child as a dependent in order to take the child tax credit.

VIII. HIGHER EDUCATION TAX CREDITS

A. In General

1. What is this credit?

There are two methods available for claiming credits for qualified expenses of higher education, which can be used together or separately: the Hope Credit, and the Lifetime Learning Credit. These credits are not available if the taxpayer is married filing separately.

2. What costs count as educational expenses?

Qualified tuition and related expenses are the costs of tuition, course-related books, and student activity fees if the fees must be paid to the institution as a condition of enrollment or attendance. Qualified expenses do NOT include the cost of insurance, medical expenses, room and board, transportation or similar personal living expenses, even if the fee must be paid to the institution as a condition of enrollment or attendance.

Qualified expenses paid for the taxpayer, his/her spouse or a dependent claimed on the taxpayer's return are deductible. If the taxpayer deducts educational expenses somewhere else on the tax return, the credit may not be claimed. The credit must be applied to expenses paid by the taxpayer or the student, and not from grants or scholarships. A choice between the Hope credit and the Lifetime Learning credit must be made for each student.

B. The Hope Credit is available for each eligible student up to $1,500, and can be claimed only for two years for each student.
1. What are the requirements for Hope credit?

To claim the Hope credit, the student must meet all of the following requirements:
a. Have not completed the first two years of post-secondary education; AND
b. Be enrolled in a program which leads to a degree, certificate or other recognized educational credential; AND
c. Be taking at least one-half of the normal full-time caseload for his/her course of study for at least one academic period which began during the calendar year; AND
d. Be free from any felony conviction for possessing or distributing a controlled substance. See the worksheet for how to figure the amount of the Hope Credit.

C. The Lifetime Learning Credit is available for up to $1,000 for the total qualified tuition and related expenses paid during the tax year for all students enrolled in educational institutions.

1. Differences from Hope Credit:
a. Lifetime Learning credit is not based on the student's course load, and is allowed for one or more courses;
b. It is available past the first two years of study and covers graduate degree courses;
c. There is no limit in the number of years the credit can be claimed; and
d. The amount that can be claimed does not increase based on the number of students for whom tuition is paid.

2. Limits on the credit.
a. The credit is phased out for single and head of household filers with incomes over $40,000, and for married joint filers with incomes over $100,000.
b. It is not available for married filing separately status.

IX. IS TAX DUE FOR PROPERTY TRANSFERS IN DIVORCE? Is it Gift Tax?

If a person transfers property to a spouse or former spouse in exchange for the release of marital rights, and the person does not qualify for any of the exceptions below, the transfer is generally reported on a gift tax return for the calendar year in which the transfer was made.

The release of marital rights is the giving up by a spouse or former spouse the rights of dower, curtsey or other property or estate rights (not including support rights). If there is a transfer of both support rights and marital rights, the reportable amount is the value of the property less the value of support rights given up.

EXCEPTIONS:

1. Support exception - a spouse's release of support rights in exchange for property incident to a divorce isconsidered to be adequate consideration, therefore is not a gift and prevents imposition of gift tax to the extent that support obligations are releases.

2. Decree exception - any transfer made pursuant to a decree or order of a court will not be considered a gift because it is not voluntary.

3. § 2516 exception - provides that transfers made pursuant to a separation agreement are not taxable gifts if a divorce occurs within a three year period beginning on the date one year before the agreement is entered into and ending two years after the date of the agreement. This applies whether or not the agreement is part of or approved by the divorce decree.

4. Medical or tuition exception - a property transfer for payment of tuition to a qualifying educational institution for the benefit of a former spouse or amounts paid for medical care for a spouse or former spouse are not subject to gift tax.

5. Annual exclusion exception - the first $10,000 of gifts or present interests to any person during the calendar year is not taxable.

Gifts subject to gift tax may still occur if:

1. Voluntary payments, or payments in excess of that which is required by decree or order are made (but unlimited marital deduction may still be available if still married at the time gifts are given);

2. Unallocated payments between releases of dower rights and alimony, but if the parties are still married, the unlimited marital deduction is still available;

3. Property transfers between spouses for the benefit of children unless within the exceptions provided by §2503(e) or §2516.

X. YEAR OF DIVORCE AND REPORTING CONSIDERATIONS

Spouses are considered married or not married as of 12/31 of the calendar year. It may be beneficial to have the decree of divorce or dissolution filed before the end of the year in order to allow the person to be able to file as head of household; but it may be better to remain married through the calendar year and file the decree at the beginning of the tax year in order to allow the parties to file a joint return.

The most effective, but not the most efficient, procedure to utilize to determine whether or not a joint filing as married persons or a single filing as a head of household would be better for the client, is to prepare the returns both ways, then to net out the differences with both federal and state returns (since both returns must be filed the same way) and determining which method maximizes returned dollars to the parties.

Some other considerations include the level of trust that the parties have towards one another, as well as the opportunities available for tax fraud available under the circumstances. For example, a self-employed person has many more opportunities to overstate deductions and understate income than does an employed W-2 recipient.

If a joint return is filed while a divorce is pending, the prudent practitioner will make an agreement regarding the division of the refunds prior to filing the returns. If separate returns are filed during the pendency of a divorce, agreements should be reached regarding which person claims which children, as well as who is permitted to take what percentage of the mortgage interest paid and real estate taxes paid as deductions.

Call today to schedule an appointment with Melissa Graham-Hurd.
Ohio Divorce Attorney

Melissa Graham-Hurd
333 South Main St.
Suite 301
Akron, Ohio 44308
330-996-4099

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