Can my fiance claim me and my child on his taxes?

Question

I live in NC. My fiance and I have lived together for 2 years now. I have 1 child and he has 3. I did not work this year. Can he claim me and my child on his taxes since he provided over half of our support this year?

Ok so just to clarify, because I did go ahead and read those links..thank you by the way...he CAN claim us both then? I am 35, she is 10..and no her father CAN'T claim her.

Answer 1

He might be able to claim you, but unless your child is also HIS child he can NOT claim your child.

To claim you, all of the following tests must be met:

1. You must be a US citizen or resident of the US, Canada or Mexico.

2. You must not be the dependent of another taxpayer.

3. You must not file a joint return with another taxpayer unless it was only to receive a refund of all income taxes withheld.

4. You must have lived with him ALL year.

5. You must have less than $3,400 in gross income for 2007, excluding non-taxable Social Security.

6. He must have provided more than 50% of your total support for the year.

7. Your relationship must not be illegal under local law. If there is a law or ordinance that prohibits cohabitation, even if it is unenforced, he may not claim you.

As to your child, the rules are VERY specific if your child is not also HIS child. I'll assume that the child is not his. In this case, your child is your Qualifying Child. One of the tests than your fiance must meet to claim a child that isn't his as a Qualifying Relative is that the child NOT be the Qualifying Child of another taxpayer. Your child is your Qualifying Child, even if you don't file a tax return and that bars your fiance from claiming your child on his return. (Once you get married, different rules will apply. You'd normally file a joint return and claim ALL of your kids on that joint return. But until you marry, he cannot claim your child.

Of course, he CAN claim his children that live with him. That doesn't change.

Update: OK, it appears that the IRS adjusted their interpretation of the law (as of 3 days ago) on the subject of the Qualifying Child/Qualifying Relative rules when claiming the child of another taxpayer. They did so with no fanfare and nothing directly linked on their website, leading me to believe that they're not looking forward to the possible torrent of amended returns from 2005 and 2006 that this could trigger since this is effective with all returns filed after 12/31/2004 when the new law went into effect. Here's a link: http://www.irs.gov/pub/irs-drop/n-08-05.pdf

As long as the parent or other individual eligible to claim the child as a Qualifying Child does not file a return claiming the child except for the ONLY purpose of receiving a refund of all income taxes withheld, the child could qualify as the Qualifying Relative of the fiance. If the parent files a return to claim the EIC, the other party could NOT claim the child as a Qualifying Relative since the reason for filing was not exclusively for claiming a refund of income taxes withheld.

Answer 2

As of IRS notice 2008-5, he may be able to claim both the fiance and the non-bio child as a qualifying RELATIVES. (The notice states that if mom is not required to file a tax return, then she doesn't have a qualifying child.)

As a qualifying relative, he would be able to claim the $3400 personal exemption only. This does not include anything that requires the child to be claimed as "qualifying child." For example, child and dependent care, the child tax credit or EIC.

As for notice 2008-5, it's at the IRS website. (Or just google it, people have been talking about it for a week.) I mentioned this in a post here on the boards the day it came out--only 2 people appeared to read it.

http://www.irs.gov/pub/irs-drop/n-08-05.pdf

Pay attention to the no-requirement-to-file criteria. If there is $400 or more of SE income, a taxpayer has to file. If they take money out of an IRA or 401K, they have to file. If they file and claim EIC, the child can't be claimed as a QR.

Answer 3

Boston is slightly behind the times in his answer, and in fact his answer was correct as of 1 week ago.

As pointed out by VB, IRS notice 2008-5 (I believe issued this past Tuesday) changed the IRS interpretation of your situation. Those in your situation who did not claim the child in 2005 and 2006 are encouraged to file amended returns, as a refund may be due.

Answer 4

I know for sure the Bostonia's answer is absolutely correct. Need more info about the IRS notice 2008-05, I never heard of it. A link to that info can be helpful.

Added later: I am here quite new, so I'm also learning.
v.b thanks to you so much for posting the link to the IRS notice 2008-5. Good stuff!

So that means your fiance can claim you and your child as his dependents. I thank you for asking this question as well, because I just learned something new.

Answer 5

NO