IRC Sec.
152
§ 152. Dependent defined.
(a) In general. For purposes of this subtitle [IRC Sections 1
et seq.], the term "dependent" means--
(1) a qualifying
child, or
(2) a qualifying
relative.
(b)
Exceptions. For purposes of this section--
(1) Dependents ineligible. If an individual
is a dependent of a taxpayer for any taxable year of such taxpayer beginning in
a calendar year, such individual shall be treated as having no dependents for
any taxable year of such individual beginning in such calendar year.
(2) Married dependents. An individual shall
not be treated as a dependent of a taxpayer under subsection (a) if such
individual has made a joint return with the individual's spouse under section
6013 [IRC Sec. 6013] for the taxable year beginning in the calendar year in
which the taxable year of the taxpayer begins.
(3) Citizens or nationals of other
countries.
(A) In general. The term
"dependent" does not include an individual who is not a citizen or
national of the
(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
(c)
Qualifying child. For purposes of this section--
(1) In general. The term "qualifying
child" means, with respect to any taxpayer for any taxable year, an
individual--
(A) who bears a
relationship to the taxpayer described in paragraph (2),
(B)
who has the same principal place of abode as the
taxpayer for more than one-half of such taxable year,
(C) who meets
the age requirements of paragraph (3), and
(D) who has not
provided over one-half of such individual's own support for the calendar year
in which the taxable year of the taxpayer begins.
(2) Relationship. For purposes of paragraph
(1)(A), an individual bears a relationship to the
taxpayer described in this paragraph if such individual is--
(A) a child of
the taxpayer or a descendant of such a child, or
(B) a brother,
sister, stepbrother, or stepsister of the taxpayer or a descendant of any such
relative.
(3) Age requirements.
(A) In general. For purposes of paragraph
(1)(C), an individual meets the requirements of this
paragraph if such individual--
(i) has not attained the age of 19 as of the close of the
calendar year in which the taxable year of the taxpayer begins, or
(ii) is a
student who has not attained the age of 24 as of the close of such calendar
year.
(B) Special rule for disabled. In the
case of an individual who is permanently and totally disabled (as defined in
section 22(e)(3) [IRC Sec. 22(e)(3)]) at any time
during such calendar year, the requirements of subparagraph (A) shall be
treated as met with respect to such individual.
(4) Special rule relating to 2 or more
claiming qualifying child.
(A) In general. Except as provided in
subparagraph (B), if (but for this paragraph) an individual may be and is claimed
as a qualifying child by 2 or more taxpayers for a taxable year beginning in
the same calendar year, such individual shall be treated as the qualifying
child of the taxpayer who is--
(i) a parent of the individual, or
(ii) if
clause (i) does not apply, the taxpayer with the
highest adjusted gross income for such taxable year.
(B) More than 1 parent claiming
qualifying child. If the parents claiming any qualifying child do not file a
joint return together, such child shall be treated as the qualifying child of--
(i) the parent with whom the child resided for the longest
period of time during the taxable year, or
(ii) if the
child resides with both parents for the same amount of time during such taxable
year, the parent with the highest adjusted gross income.
(d)
Qualifying relative. For purposes of this section--
(1) In general. The term "qualifying
relative" means, with respect to any taxpayer for any taxable year, an
individual--
(A) who bears a
relationship to the taxpayer described in paragraph (2),
(B) whose gross income for the calendar
year in which such taxable year begins is less than the exemption amount (as
defined in section 151(d) [IRC Sec. 151(d)]),
(C) with respect
to whom the taxpayer provides over one-half of the individual's support for the
calendar year in which such taxable year begins, and
(D) who is not a
qualifying child of such taxpayer or of any other taxpayer for any taxable year
beginning in the calendar year in which such taxable year begins.
(2) Relationship. For purposes of paragraph
(1)(A), an individual bears a relationship to the
taxpayer described in this paragraph if the individual is any of the following
with respect to the taxpayer:
(A) A child or a descendant of a child.
(B) A brother, sister, stepbrother, or
stepsister.
(C) The father or mother, or an ancestor
of either.
(D) A stepfather or stepmother.
(E) A son or daughter of a brother or
sister of the taxpayer.
(F) A brother or sister of the father or
mother of the taxpayer.
(G) A son-in-law, daughter-in-law,
father-in-law, mother-in-law, brother-in-law, or sister-in-law.
(H) An individual (other than an
individual who at any time during the taxable year was the spouse, determined
without regard to section 7703 [IRC Sec. 7703], of the taxpayer) who, for the
taxable year of the taxpayer, has the same principal place of abode as the
taxpayer and is a member of the taxpayer's household.
(3)
Special rule relating to multiple support agreements. For purposes of paragraph
(1)(C), over one-half of the support of an individual
for a calendar year shall be treated as received from the taxpayer if--
(A) no one person contributed over one-half
of such support,
(B) over one-half of such support was
received from 2 or more persons each of whom, but for the fact that any such
person alone did not contribute over one-half of such support, would have been
entitled to claim such individual as a dependent for a taxable year beginning
in such calendar year,
(C) the taxpayer
contributed over 10 percent of such support, and
(D) each person
described in subparagraph (B) (other than the taxpayer) who contributed over 10
percent of such support files a written declaration (in such manner and form as
the Secretary may by regulations prescribe) that such person will not claim
such individual as a dependent for any taxable year beginning in such calendar
year.
(4) Special rule relating to income of
handicapped dependents.
(A) In general. For purposes of paragraph
(1)(B), the gross income of an individual who is
permanently and totally disabled (as defined in section 22(e)(3) [IRC Sec.
22(e)(3)]) at any time during the taxable year shall not include income
attributable to services performed by the individual at a sheltered workshop
if--
(i) the availability of medical care at such workshop is the
principal reason for the individual's presence there, and
(ii) the income
arises solely from activities at such workshop which are incident to such
medical care.
(B) Sheltered workshop defined. For
purposes of subparagraph (A), the term "sheltered workshop" means a
school--
(i) which provides special instruction or training designed to
alleviate the disability of the individual, and
(ii) which is operated by an
organization described in section 501(c)(3) [IRC Sec. 501(c)(3)] and exempt
from tax under section 501(a) [IRC Sec. 501(a)], or by a State, a possession of
the United States, any political subdivision of any of the foregoing, the
United States, or the District of Columbia.
(5) Special rules for support. For purposes
of this subsection--
(A) payments to a spouse which are
includible in the gross income of such spouse under section 71 or 682 [IRC Sec.
71 or 682] shall not be treated as a payment by the payor
spouse for the support of any dependent, and
(B) in the case
of the remarriage of a parent, support of a child received from the parent's
spouse shall be treated as received from the parent.
(e) Special
rule for divorced parents, etc.
(1) In general. Notwithstanding subsection
(c)(1)(B), (c)(4), or (d)(1)(C), if--
(A) a child
receives over one-half of the child's support during the calendar year from the
child's parents--
(i) who are divorced or legally separated under a decree of
divorce or separate maintenance,
(ii) who are
separated under a written separation agreement, or
(iii) who
live apart at all times during the last 6 months of the calendar year, and--
(B) such child is in the custody of 1 or
both of the child's parents for more than one-half of the calendar year, such
child shall be treated as being the qualifying child or qualifying relative of
the noncustodial parent for a calendar year if the requirements described in
paragraph (2) or (3) are met.
(2) Exception where custodial parent
releases claim to exemption for the year. For purposes of paragraph (1), the
requirements described in this paragraph are met with respect to any calendar
year if--
(A) the
custodial parent signs a written declaration (in such manner and form as the
Secretary may by regulations prescribe) that such custodial parent will not
claim such child as a dependent for any taxable year beginning in such calendar
year, and
(B) the
noncustodial parent attaches such written declaration to the noncustodial
parent's return for the taxable year beginning during such calendar year.
(3) Exception for certain pre-1985
instruments.
(A) In general. For purposes of paragraph
(1), the requirements described in this paragraph are met with respect to any
calendar year if--
(i) a
qualified pre-1985 instrument between the parents applicable to the taxable
year beginning in such calendar year provides that the noncustodial parent
shall be entitled to any deduction allowable under section 151 [IRC Sec. 151]
for such child, and
(ii) the
noncustodial parent provides at least $ 600 for the support of such child
during such calendar year.
For purposes of this subparagraph,
amounts expended for the support of a child or children shall be treated as
received from the noncustodial parent to the extent that such parent provided
amounts for such support.
(B) Qualified pre-1985 instrument. For
purposes of this paragraph, the term "qualified pre-1985 instrument"
means any decree of divorce or separate maintenance or written agreement--
(i) which is executed before January 1, 1985,
(ii) which on
such date contains the provision described in subparagraph (A)(i), and
(iii) which
is not modified on or after such date in a modification which expressly
provides that this paragraph shall not apply to such decree or agreement.
(4) Custodial parent and noncustodial
parent. For purposes of this subsection--
(A) Custodial parent. The term
"custodial parent" means the parent having custody for the greater
portion of the calendar year.
(B) Noncustodial parent. The term
"noncustodial parent" means the parent who is not the custodial
parent.
(5) Exception for multiple-support
agreement. This subsection shall not apply in any case where over one-half of
the support of the child is treated as having been received from a taxpayer
under the provision of subsection (d)(3).
(6) Special rule for support received from
new spouse of parent. For purposes of this subsection, in the case of the
remarriage of a parent, support of a child received from the parent's spouse
shall be treated as received from the parent.
(f) Other
definitions and rules. For purposes of this section--
(1) Child defined.
(A) In general. The 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.
(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.
(C) Eligible foster child. For purposes
of subparagraph (A)(ii), the term "eligible
foster child" means an individual who is placed with the taxpayer by an
authorized placement agency or by judgment, decree, or other order of any court
of competent jurisdiction.
(2) Student defined. The term
"student" means an individual who during each of 5 calendar months
during the calendar year in which the taxable year of the taxpayer begins--
(A) is a
full-time student at an educational organization described in section
170(b)(1)(A)(ii) [IRC Sec. 170(b((1)(a)(ii)], or
(B) is pursuing a full-time course of
institutional on-farm training under the supervision of an accredited agent of
an educational organization described in section 170(b)(1)(A)(ii) [IRC Sec.
170(b)(1)(A)(ii)] or of a State or political subdivision of a State.
(3) Determination of household status. An
individual shall not be treated as a member of the taxpayer's household if at
any time during the taxable year of the taxpayer the relationship between such
individual and the taxpayer is in violation of local law.
(4) Brother and sister. The terms
"brother" and "sister" include a brother or sister by the
half blood.
(5) Special support test in case of
students. For purposes of subsections (c)(1)(D) and
(d)(1)(C), in the case of an individual who is--
(A) a child of
the taxpayer, and
(B) a student,
amounts received as
scholarships for study at an educational organization described in section
170(b)(1)(A)(ii) [IRC Sec. 170(b)(1)(A)(ii)] shall not be taken into account.
(6) Treatment of missing children.
(A) In general. Solely for the purposes
referred to in subparagraph (B), a child of the taxpayer--
(i) who is presumed by law enforcement authorities to have been
kidnapped by someone who is not a member of the family of such child or the
taxpayer, and
(ii) who had,
for the taxable year in which the kidnapping occurred, the same principal place
of abode as the taxpayer for more than one-half of the portion of such year
before the date of the kidnapping,
shall be treated as meeting the requirement of subsection
(c)(1)(B) with respect to a taxpayer for all taxable years ending during the
period that the child is kidnapped.
(B) Purposes. Subparagraph (A) shall
apply solely for purposes of determining--
(i) the deduction under section 151(c) [IRC Sec. 151(c)],
(ii) the
credit under section 24 [IRC Sec. 24] (relating to child tax credit),
(iii) whether
an individual is a surviving spouse or a head of a household (as such terms are
defined in section 2 [IRC Sec. 2]), and
(iv) the
earned income credit under section 32 [IRC Sec. 32].
(C) Comparable treatment of certain
qualifying relatives. For purposes of this section, a child of the taxpayer--
(i) who is presumed by law enforcement authorities to have been
kidnapped by someone who is not a member of the family of such child or the
taxpayer, and
(ii) who was
(without regard to this paragraph) a qualifying relative of the taxpayer for
the portion of the taxable year before the date of the kidnapping,
shall be treated
as a qualifying relative of the taxpayer for all taxable years ending during
the period that the child is kidnapped.
(D) Termination of treatment.
Subparagraphs (A) and (C) shall cease to apply as of the first taxable year of
the taxpayer beginning after the calendar year in which there is a
determination that the child is dead (or, if earlier, in which the child would
have attained age 18).
(7) Cross references. For provision treating
child as dependent of both parents for purposes of certain provisions, see
sections 105(b), 132(h)(2)(B), and 213(d)(5) [IRC Sections 105(b),
132(h)(2)(B), and 213(d)(5)].