Level 6

Question

Legal Guardianship of Unrelated Child

Forum|Forum|5 years ago
February 20, 2021
10 replies
67 views

I have a client who was given legal guardianship of a child at the end of 2019.

My client did not claim the child in 2019.

The child is 16 years old as of 12/31/2020 and is NOT related to my client.

My client provides 100% of his support, the child lived all of 2020 with my client, and the child has no income at all.

I am trying to determine:

1. How do I list this child in the Relationship Area (Part III) of the Information Worksheet? Choices are: Son? (Does not seem appropriate) Foster Child? Other? None?

2. Does my client get to claim the 1st and 2nd EIP payments under the Recovery Rebate Credit Worksheet?

3. Does the child entitle my client to the Child Tax Credit?

The child's Mother passed away in 2019.

The child's Father is alive but, as noted above, signed away all legal rights to my client as Guardian and does not see the child at all.

Any help pointing me to documents and/or citations that are on point would be greatly appreciated.

Thanks in advance.

ProSeries Professional

This topic has been closed for replies.

qbteachmt

Level 15

Start here:

If the person is not a dependent in 2020, then they would be entitled to the payment/credit as individual filers or by whoever claims them. That doesn't mean "not being claimed." It means "no longer qualifies as a dependent."

You might want to bookmark these links and read the IRS guidance.

Interactive wizards portal for determining dependency:

https://www.irs.gov/help/ita

And:

https://www.irs.gov/newsroom/economic-impact-payment-information-center-topic-a-eip-eligibility

https://www.irs.gov/coronavirus/second-eip-faqs#Eligibility

One for each EIP.

Don't yell at us; we're volunteers

M

msmith7305Author

Level 6

He does qualify as a dependent of my client. At the very least he is an "Other Dependent".

The issue is if, under legal guardianship, he qualifies as a Qualifying Child or any other classification that allows the EIP and Child Tax Credit to go to my client.

I believe there is a legal distinction between Foster Child and a child under guardianship.

I did not see any language in your links discussing a child who is under "guardianship".

qbteachmt

Level 15

"The issue is if, under legal guardianship, he qualifies as a Qualifying Child or any other classification that allows the EIP and Child Tax Credit to go to my client."

Now that you see how to determine this is a Dependent, you can use the EIP links I gave to use that info for EIP purposes. The same is true for CTC.

"I did not see any language in your links discussing a child who is under "guardianship"."

Guardianship is not the IRS terminology.

Don't yell at us; we're volunteers

BobKamman

Level 15

Foster child. A foster child is an individual who is placed with you by an authorized placement agency or by judgment, decree, or other order of any court of competent jurisdiction. [IRS Pub 501]

A foster child is a qualifying child, for purposes of the relationship test. So the foster parent can claim the child tax credit and the rebate recovery credits.

qbteachmt

Level 15

Foster care and Guardianship are not synonyms. Foster care often includes care payments, and that results in a 1099 being issued. For Foster care examples, your residence will be evaluated, there will be an official agency between you and that child at all times, and you need permission to even take them out of town/State/County. Guardianship and custody are not synonyms, either. There can be legal custody that is not physical custody. But this is not tax regulation; this is child welfare.

Don't yell at us; we're volunteers

BobKamman

Level 15

That's why I posted the IRS definition of foster child (which, incidentally, comes straight from the Internal Revenue Code, Section 152), which fits the poster's situation. Just trying to avoid generic answers to specific questions.

Sign up

Login with SSO

Let's get you signed in

Login with SSO