Part B. Rules If You Have a Qualifying Child

Use Part B if you:

1. Have a qualifying child, and
2. Have met all the rules in Part A.

This part of the chapter discusses Rules 7 through 9. You must meet all three of these rules, in addition to the rules in Parts A and D, to qualify for the earned income credit with a qualifying child.

Qualifying child

You must file Form 1040 or Form 1040A to claim the EIC with a qualifying child. (You cannot file Form 1040EZ). You must also complete Schedule EIC and attach it to your return. If you meet all the rules in Part A and this part, read Part D to find out what to do next.

If you do not meet Rule 7, you do not have a qualifying child. Read Part C to find out if you can get the earned income credit without a qualifying child.

Rule 7. Your Child Must Meet the Relationship, Age, and Residency Tests

Your child is a qualifying child if your child meets three tests. The three tests are:

1. Relationship,
2. Age, and
3. Residency.

The three tests are illustrated in Figure 37-1. The paragraphs that follow contain more information about each test.

Relationship Test

Your child must be either your son, daughter, adopted child, stepchild, grandchild, or eligible foster child. Your brother, sister, stepbrother, or stepsister (or the child or grandchild of your brother, sister, stepbrother, or stepsister) may also be a qualifying child if you care for this individual as you would your own child. The following definitions clarify the relationship test.

Adopted child.   Your adopted child includes a child placed with you for adoption by an authorized placement agency, even if the adoption is not final.

An authorized placement agency includes any person or court authorized by state law to place children for legal adoption.

Grandchild.   For the EIC, this means any descendant of a son, daughter, stepchild, or adopted child. For example, a grandchild includes your great-grandchild, great-
great-grandchild, etc.

Child not a dependent.   Your child does not have to be your dependent to be a qualifying child, unless he or she is married.

Married child.   If your child was married at the end of the year, he or she does not meet the relationship test unless either of these two situations applies to you:

1. You can claim the child's exemption, or
2. The reason you cannot claim the child's exemption is that you gave that right to your child's other parent:
   1. When you completed Form 8332 or a similar written statement, or
   2. In a pre-1985 agreement (such as a separation agreement or divorce decree).

Eligible foster child.   For the EIC, a person is your eligible foster child if both of the following are true.

1. The child is placed with you by an authorized placement agency. An authorized placement agency includes a state or local government agency or court. It also includes a tax-exempt organization licensed by a state.
2. You cared for that child as you would your own child.

Example.   Debbie, who is 12 years old, was placed in your care two years ago by an authorized agency responsible for placing children in foster homes. You care for her as you would your own child. Debbie is your eligible foster child.

Age Test

Your child must be:

1. Under age 19 at the end of 2002,
2. A full-time student under age 24 at the end of 2002, or
3. Permanently and totally disabled at any time during 2002, regardless of age.

The following example and definitions clarify the age test.

Example.   Your son turned 19 on December 10. Unless he was disabled or a full-time student, he is not a qualifying child because, at the end of the year, he was not under age 19.

Full-time student.   A full-time student is a student who is enrolled for the number of hours or courses the school considers to be full-time attendance.

Student defined.   To qualify as a student, your child must be, during some part of each of any 5 calendar months during the calendar year:

1. A full-time student at a school that has a regular teaching staff, course of study, and regularly enrolled student body, or
2. A student taking a full-time, on-farm training course given by a school described in (1), or a state, county, or local government.

The 5 calendar months need not be consecutive.

School defined.   A school can be an elementary school, junior or senior high school, college, university, or technical, trade, or mechanical school. However, on-the-job training courses, correspondence schools, and night schools do not count as schools for the EIC. (But see Night school, later.)

Vocational high school students.   Students who work on co-op jobs in private industry as a part of a school's regular course of classroom and practical training are considered full-time students.

Night school.   Your child is not a full-time student if he or she attends school only at night. However, full-time attendance at a school may include some attendance at night as part of a full-time course of study.

Permanently and totally disabled.   Your child is permanently and totally disabled if both of the following apply.

1. He or she cannot engage in any substantial gainful activity because of a physical or mental condition.
2. A doctor determines the condition has lasted or can be expected to last continuously for at least a year or can lead to death.

Residency Test

Your child must have lived with you in the United States for more than half of 2002. The following definitions clarify the residency test.

United States.   This means the 50 states and the District of Columbia. It does not include U.S. possessions, such as Guam and Puerto Rico.

Homeless shelter.   Your home can be any location where you regularly live. You do not need a traditional home. For example, if your child lived with you for more than half the year in one or more homeless shelters, your child meets the residency test.

Military personnel stationed outside the United States.   U.S. military personnel stationed outside the United States on extended active duty are considered to live in the United States during that duty period for purposes of the EIC.

Extended active duty.   Extended active duty means you are called or ordered to duty for an indefinite period or for a period of more than 90 days. Once you begin serving your extended active duty, you are still considered to have been on extended active duty even if you do not serve more than 90 days.

Birth or death of a child.   A child who was born or died in 2002 is treated as having lived with you for all of 2002 if your home was the child's home the entire time he or she was alive in 2002.

Temporary absences.   Count time that you or your child is away from home on a temporary absence due to a special circumstance as time lived at home. Examples of a special circumstance include:

• Illness,
• School attendance,
• Detention in a juvenile facility,
• Business,
• Vacation, and
• Military service.

Kidnapped child.   A kidnapped child is treated as living with you for more than half of the year if the child lived with you for more than half the part of the year before the date of the kidnapping. The child must be presumed by law enforcement authorities to have been kidnapped by someone who is not a member of your family or your child's family. This treatment applies for all years until the child is returned. However, the last year this treatment can apply is the earlier of:

1. The year there is a determination that the child is dead, or
2. The year the child would have reached age 18.

If your qualifying child has been kidnapped and meets these requirements, enter KC, instead of a number, on line 6 of Schedule EIC.

Social security number.   Your qualifying child must have a valid social security number (SSN) unless the child was born and died in 2002. You cannot claim the EIC on the basis of a qualifying child if:

1. Your qualifying child's SSN is missing from your tax return or is incorrect,
2. Your qualifying child's social security card says Not valid for employment and was issued only for use in getting a federally funded benefit, or
3. Instead of an SSN, your qualifying child has:
   1. An individual taxpayer identification number (ITIN), which is issued to a noncitizen who cannot get an SSN, or
   2. 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 EIC only on the basis of that child. For more information about SSNs, see Rule 1.

Rule 8. Your Qualifying Child Cannot Be Used By More Than One Person To Claim the EIC

Sometimes a child meets the rules to be a qualifying child of more than one person. However, only one person can treat that child as a qualifying child and claim the EIC using that child. The paragraphs that follow will help you decide who can claim the EIC when more than one person has the same qualifying child.

You can choose which person will claim the EIC.   If you and someone else have the same qualifying child, you and the other person(s) can decide who will claim the credit using that qualifying child. But if you and the other person(s) cannot agree and more than one person claims the credit using the same child, the tie-breaker rule (explained in the next paragraph) applies. If the other person is your spouse and you file a joint return, this rule does not apply.

Under the tie-breaker rule, the child can be treated as a qualifying child only by:

1. The parent, if only one of the persons is the child's parent,
2. The parent with whom the child lived for the longest period of time during the tax year, if two of the persons are parents of the child,
3. The parent with the highest AGI if the child lived with each parent for the same amount of time during the tax year, or
4. The person with the highest AGI, if none of the persons is the child's parent.

  

If another person claims the EIC using this child.   If your qualifying child is treated under this rule as the qualifying child of another person for 2002, you cannot take the EIC using this qualifying child. You may be able to take the EIC using a different qualifying child, but you cannot take the EIC for people who do not have a qualifying child. If you do not have another qualifying child, STOP; you cannot take the EIC. Put No beside line 64 (Form 1040) or line 41 (Form 1040A).

Example 1.   You and your 2-year-old son lived with your mother all year. You are 25 years old. Your only income was $9,000 from a part-time job. Your mother's only income was $20,000 from her job. Your son is a qualifying child of both you and your mother because he meets the relationship, age, and residency tests for both you and your mother. However, only one of you can use him to claim the EIC. You and your mother may choose which of you will treat the child as a qualifying child to claim the EIC. However, if you and she disagree and both use him to claim the EIC, you as the child's parent will be the only one allowed to claim the credit using this child.

Example 2.   The facts are the same as in Example 1, except that you also have two other young children who lived with you and your mother and are qualifying children of both you and your mother. Only one of you can use each child to claim the EIC. However, you and your mother can split the three qualifying children between you. For example, you can use one child to claim the EIC and your mother can use the other two.

Example 3.   The facts are the same as in Example 1, except that you are only 18 years old. This means you are a qualifying child of your mother. Because of Rule 9, you cannot claim the EIC. Only your mother may be able to treat your son as a qualifying child to claim the EIC.

Example 4.   You, your husband, and your 10-year-old son lived together until July 1, 2002, when your husband moved out of the household. In July and August, your son lived with your husband. In September and October, the boy lived with you. On November 1, 2002, you and your husband were divorced. For the rest of the year, your son lived with your ex-husband, who was given custody. Your son is a qualifying child of both you and your ex-husband because your son lived with each of you for more than half the year and because he met the relationship and age tests for both of you. You earned $11,000 during the year and your ex-husband earned $25,000. Neither of you had any other income.

You and your ex-husband may choose which of you will treat the child as a qualifying child to claim the EIC. However, if you and he are unable to agree and both use the child to claim the EIC, only your ex-husband will be allowed to claim the credit using this child. This is because, during 2002, the child lived with him longer than with you. You cannot claim the EIC for persons either with or without a qualifying child.

Example 5.   You, your 5-year-old son, and your son's father lived together all year. You and your son's father are not married. Your son is a qualifying child of both you and his father because he meets the relationship, age, and residency tests for both you and his father. You earned $8,000 and your son's father earned $18,000. Neither of you had any other income. You and your son's father may choose which of you will treat the child as a qualifying child to claim the EIC. However, if you and he are unable to agree and both use the child to claim the EIC, only the father will be allowed to claim the credit using this child. This is because his AGI ($18,000) was more than your AGI ($8,000). You cannot claim the EIC for persons either with or without a qualifying child.

Example 6.   You and your 7-year-old niece lived with your mother all year. You care for your niece as you would your own child. You are 25 years old, and your only income was $9,300 from a part-time job. Your mother's only income was $15,000 from her job. Your niece is a qualifying child of both you and your mother because she meets the relationship, age, and residency tests for both you and your mother. However, only one of you can treat her as a qualifying child to claim the EIC. You and your mother may choose which of you will use the child to claim the EIC. However, if you and she are unable to agree and both use the child to claim the EIC, only your mother will be allowed to claim the credit using this child. This is because her AGI ($15,000) is higher than your AGI ($9,300).

Rule 9. You Cannot Be a Qualifying Child of Another Person

You are a qualifying child of another person (your parent, guardian, foster parent, etc.) if all of the following statements are true.

• You are that person's son, daughter, adopted child, stepchild, grandchild, or eligible foster child. Or, you are that person's brother, sister, stepbrother, or stepsister (or the child or grandchild of that person's brother, sister, stepbrother, or stepsister) for whom that person cares as his or her own child.
• At the end of the year you were under age 19, under age 24 and a full-time student, or any age if you were permanently and totally disabled at any time during the year.
• You lived with that person in the United States for more than half of the year.

For more details about the tests to be a qualifying child, see Rule 7.

If you (or your spouse if filing a joint return) are a qualifying child of another person, you cannot claim the EIC. This is true even if the person for whom you are a qualifying child does not claim the EIC or meet all of the rules to claim the EIC. Put No beside line 64 (Form 1040) or line 41 (Form 1040A).

Example.   You and your daughter lived with your mother all year. You are 22 years old and attended a trade school full time. You had a part-time job and earned $5,700. You had no other income. Because you meet the relationship, age, and residency tests, you are a qualifying child of your mother. She can claim the EIC if she meets all the other requirements. Because you are your mother's qualifying child, you cannot claim the EIC. This is so even if your mother cannot or does not claim the EIC.

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