Additional Thoughts on Qualifying Child
- From: "Phil Marti" <prm20871@xxxxxxxxxxx>
- Date: Mon, 30 Jan 2006 23:27:11 GMT
What has bothered me from the beginning has been the concept that the status
of being a qualifying child exists in a vacuum. The more I look at the law,
the less I can see a rationale for first determining whether an individual
is a qualifying child, then deciding whose qualifying child he is.
If that was how it's supposed to work, why didn't they just put the
qualifying child definition in 7701 with the other definitions that apply
across the board? It seems to me that it would then be clear that
determining the status of the child comes before you start applying it to a
Instead, that part of the definition that is truly uniform is in section
152, requirements for dependents. All the other provisions, IRC 2 (HofH),
IRC 21, (CDCC), IRC 24, (CTC) and IRC 32 (EIC) look back to 152. Those who
have been to law school would know better than I, but to me that says 152 is
where the action is.
So here comes BF knocking at 152's front door to determine his dependents.
GF is easy. She is clearly a qualifying relative for dependency. Moreover,
she has no choice as to whether she is or not.
So he looks at the kids. Clearly they are not qualifying children of his.
They fail the relationship test. So he looks to 152(d)(1) to see if they're
qualifying relatives. He sails through paragraphs A, B and C. We wind up
at 152(d)(1)(D), which disqualifies the kid if he is the qualifying child of
any other taxpayer for the taxable year in question.
Here's where lawyers would be a big help. If we look way back up at
152(b)(1) we see that GF cannot have any dependents for this tax year.
Since GF is the only taxpayer for whom the children could possibly be
qualifying children, it boils down to whether they are still her qualifying
children even though they are not her dependents and don't qualify her for
any tax benefit.
To conclude that they are qualifying children, we have to accept the concept
that we have these qualifying children floating around not qualifying anyone
for anything. I may be simple minded, but that makes no sense.
Far more reasonable to me is the approach that the status of qualifying
child is determined while determining dependency. It seems to be that this
is supported by the fact that all the other provisions look to this section.
(Need lawyers again. I know there are general precepts of legislative
construction, which may or may not be pertinent to this discussion.) With
this approach the kids are not qualifying children of any taxpayer and,
thus, available to boyfriend under paragraph D as qualifying relatives.
I've read the conference report, which seems to imply (yes, it's that fuzzy
to me) that Congress intended that no one would get the kids' exemptions,
but it doesn't come out and say so. Nowhere do they espouse the "look at
the kid first" approach.
I also can't ignore the political climate. It's hard for me to accept that
current Congressional leadership would stick it to this pseudofamily and the
Godless slattern exposing her children to the shackup without trumpeting
their strike for family values. Haven't heard a peep from them. All they
do is brag about how easy they've made things. OTOH, they could just be
hoping no one will notice since I would think that most people would find it
I'm told that IRS has told Block that no one gets the kids' exemptions, but
nothing about what reasoning the IRS offered. I'm told the same thing at
VITA, again without any analysis. So, it does seem that IRS has decided,
but I'd sure like to see the analysis behind it, because so far I don't buy
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