Step-Child Dependency for Non-US Citizen
For long term expats living in another country with a step-family / step-children via marriage.
Looking at [26 U.S. Code § 152 - Dependent defined as a reference which states:
The term “dependent” does not include an individual who is not a citizen or national of the United States unless such individual is a resident of the United States or a country contiguous to the United States.
With a caveat subtitled "Exception for adopted child." but text of -
Subparagraph (A) shall not exclude any child of a taxpayer (within the meaning of subsection (f)(1)(B)) from the definition of “dependent” if—
(i) for the taxable year of the taxpayer, the child has the same principal place of abode as the taxpayer and is a member of the taxpayer’s household, and
(ii) the taxpayer is a citizen or national of the United States.
which would sort of imply that a step-child should be qualified as a dependent. Even if they can't get an ITIN number. Does this seem a reasonable interpretation of the law? If so, how do people take this up with the IRS so they can claim non-US-citizen-step-children as dependents?
(2)2 Comments
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Same section, subsection (f)(1):
(1) Child defined
(A) In generalThe term “child” means an individual
who is—
(i) a son, daughter, stepson, or stepdaughter of the taxpayer,
or
(ii) an eligible foster child of the taxpayer.
You need SSN to get certain things (like child credit etc), and you can ask for ITIN if needed instead.
The section you mentioned is for adopted children of US nationals only. The section's title says "adopted child":
(B) Exception for adopted child Subparagraph (A) shall not exclude any child of a taxpayer (within the meaning of subsection (f)(1)(B))
from the definition of “dependent” if—
(i) for the taxable year of the taxpayer, the child has the same
principal place of abode as the taxpayer and is a member of the
taxpayer’s household, and
(ii) the taxpayer is a citizen or national of the United States.
and the text says "any child of a taxpayer (within the meaning of subsection (f)(1)(B))" which refers to the following part that defines it as only for adopted children.
(B) Adopted child
In determining whether any of the relationships specified in
subparagraph (A)(i) or paragraph (4) exists, a legally adopted
individual of the taxpayer, or an individual who is lawfully placed
with the taxpayer for legal adoption by the taxpayer, shall be treated
as a child of such individual by blood.
You have not mentioned that you have adopted your step-children. If you haven't adopted them, then the exception wouldn't apply to them.
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