Capitalizing on Tax Benefits for Parents of



Capitalizing on Tax Benefits for Parents of

Children with Special Needs

Submitted by:

Thomas M. Brinker, Jr., LL.M., CPA

Professor of Accounting

Arcadia University

brinker@arcadia.edu

and

W. Richard Sherman, J.D., LL.M., CPA

Professor of Accounting

Saint Joseph’s University

rsherman@sju.edu

and

James F. Ivers, III, J.D., LL.M., ChFC

Professor of Taxation

The American College

jim.ivers@theamericancollege.edu

Portions of this article were reprinted and updated with permission from Fundamentals of Income Taxation, Sixth Edition, by James F. Ivers, III; “Individual Income Tax Credits pp 235-242. Copyright 2005 The American College Press, Bryn Mawr, PA . This two-part article appeared in the November and December 2006 issues of Exceptional Parent.

As the number of children diagnosed with autism, Asperger’s syndrome, and other neurological disorders skyrockets, the disruption of the lives of all those concerned is unmistakable – as are the costs of providing care for the special needs child. Further complicating the situation, parents with special needs children are often unaware of the substantial tax benefits that are available to them and forego hundreds, if not thousands, of potential tax deductions and reductions in their tax liability. Michael A. O'Connor, an attorney who has written extensively on this topic, believes that 15-30 percent of families with a disabled child have one or more unclaimed tax benefits (). Among these potential tax benefits are deductions or credits for medical expenses, special instruction, child and dependent care, and adoption costs. This article outlines some of the tax aspects of caring for children with special needs.

Special Instruction Qualifying as Medical Expense Deductions

In general, costs related to providing a child’s traditional education are not considered medical care and, therefore, are not deductible as a medical expense. However, according to Treasury Regulation 1.213-1(e)(1)(v), the unreimbursed cost of attending a special school for a mentally or physically handicapped individual is deductible as a medical expense if the principal reason for the individual's attendance is to alleviate the handicap through the resources of the school or institution. This deduction may also include amounts paid for lodging, meals, transportation, and the cost of ordinary education incidental to the special services provided by the school. Also, any costs incurred for the supervision, care, treatment and training of a physically and/or mentally handicapped individual are deductible if provided by the institution.

The Rationale behind the Special Education and Training Deduction

Under U.S. law, all children are entitled to an equal and appropriate (public) education. However, many public schools do not have special programs and/or facilities to handle the needs of mentally and/or physically handicapped children. As a result, it is sometimes necessary for mentally or physically handicapped children to attend special schools where the focus is not only on education, but also on alleviating the handicap of the child. The cost of these special schools is not always covered by the government or the school district and, therefore, the parents must pay for all or a portion of the tuition. If the school qualifies as a special school, the entire unreimbursed cost (subject to the 7.5% AGI limitation) incurred by the parents is deductible as a medical expense.

However, parents who are eligible to participate in tax-advantaged plans through work for funding medical expenses, such as flexible spending accounts or health savings accounts can set aside limited amounts of money to finance medical care expenses on a pretax basis while bypassing the 7.5% AGI limitation.

Special Schools

A special school is distinguishable from a regular school by the substantive content of its curriculum. A special school may offer ordinary education, but it must be incidental to enabling the student to compensate for or overcome a handicap so that he or she will be prepared for future normal education or normal living. A special school is not determined by the institution as a whole, but by the nature of the services received by the individual for whom a medical care deduction is sought. The IRS considers the medical facilities and therapeutic orientation of a school as critical factors in determining whether a school is a special school for a qualifying medical care deduction. Case law and IRS administrative rulings reveal a litany of examples considered special schools by the IRS:

• Schools for teaching Braille to the blind or lip reading to the deaf,

• Schools for training the mentally retarded,

• A military school that accepted a physically and mentally handicapped student (the school gave personal daily attention to the student to improve upon the student’s low attention span),

• A boarding school recommended by a psychiatrist (the school had psychiatrists, psychologists, and social workers who developed a special program for each student),

• Schools for average and above average students with learning disabilities which provide an environment in which they can adjust to a normal competitive classroom situation, and

• A regular school’s curriculum that is specially designed to accommodate the needs of handicapped children with IQ scores ranging from 50 to 75.

Furthermore, regular schools with special curricula can be classified as a special school for an individual. For example, in one Revenue Ruling, the school in question had a special curriculum for mentally disabled children with the special curriculum representing a separate component of the school’s activities. Since the school’s special education curriculum was a severable aspect of the school’s activities, the IRS ruled that the special curriculum was a special school (Rev. Rul. 70-285, 1970-1 CB 52).

In another case, the IRS specifically ruled in Revenue Ruling 78-340 (1978-2 CB 124) that a taxpayer whose child suffers from severe learning disabilities caused by a neurological disorder (i.e., autism spectrum disorder) may deduct as a medical expense amounts paid for tuition and related fees for the child’s education at a special school that has a program designed to “mainstream” these children so they can return to a regular school. The Ruling further held that amounts paid for private tutoring by a specially trained teacher (i.e., therapeutic and behavioral support services) qualified to deal with severe learning disabilities is also deductible. However, both the special school and tutoring need to be recommended by a physician.

In a Letter Ruling issued in 2005, the IRS expanded the definition of special schooling to include tuition for programs enabling dyslexic children to deal with their condition. The IRS ruled that the children were attending the school for the principal purpose of obtaining medical care in the form of special education. The special education was required for the years in which the children were diagnosed as having a medical condition (including dyslexia) that impaired their ability to learn. As a result, the IRS ruled in favor of a medical expense deduction for the tuition paid to the school (Letter Ruling 200521003).

Medical Expense Deduction for Medical Conferences and Seminars

Parents of special needs children often attend medical conferences and seminars in order to learn more about their child’s disability. Using the authority of Revenue Ruling 2000-24 (2000-19 I.R.B. 963), the amounts paid for the registration fees and travel expenses are deductible as medical expenses. However, parents should obtain the recommendation of their child’s doctor to insure their medical deduction. In addition, the Ruling did not extend medical care deductibility to any meals and/or lodging costs incurred while attending the conference. Furthermore, the conference or seminar must deal specifically with the medical condition from which the child suffers, not just general health and well-being issues. As with the special instruction and other medical expenses, the aggregate amount of all medical expenses incurred must exceed 7.5% of the taxpayers’ AGI to be deductible.

Deductions for Dependents

In order to claim a dependency exemption ($3,500 for 2008), a taxpayer must satisfy a five-prong test. The taxpayer must provide more than half of the dependent’s support (the Support Test). The dependent must be a “qualifying relative” or member of the taxpayer’s household for the entire year (the Relationship Test). The dependent’s gross income cannot exceed the exemption amount ($3,500 for 2008; the Gross Income Test). If married, the dependent cannot file a joint return for the year (the Joint Return Test). The dependent must be a U.S. citizen or resident or resident of Canada or Mexico (the Citizenship or Residency Test). With passage of the Working Families Tax Relief Act of 2004 (taking effect for 2005 and years thereafter), the definition of a “qualifying child” or a “qualifying relative” was clarified to provide a uniform definition for purposes of dependency exemptions, child tax, dependent care, and earned income tax credits. Under this definition, in addition to meeting the relationship test [taxpayer’s child, stepchild, eligible foster child, or descendent (e.g. grandchild) or taxpayer’s brother, sister, or descendent (e.g. niece, nephew)], a “qualifying child” must meet any ONE of the following three requirements:

(1) The individual must be under the age of 19 at year end; OR

(2) The individual must be a full-time student under the age of 24 at the end of the year (qualifying “students” must be enrolled as a “full-time” student during any part of five calendar months during the year); OR

(3) The individual must be totally and permanently disabled at any time during the year.

It is important to note that grandparents, uncles, aunts, brothers and sisters satisfy this “relationship” test and, therefore, may be allowed to claim the dependency exemption for a “qualifying child” who is totally or permanently disabled, regardless of the age of that child.

Child Tax Credit

In addition to the deductions mentioned above, certain credits may also be available to parents of special needs children. The most common of these credits is the $1,000 credit which is allowed for the taxpayer’s “qualifying child” under the age of 17. The definition of a “qualifying child” used for purposes of claiming a dependency exemption under IRC Section 151 is also used for purposes of claiming the child tax credit. Consequently, the taxpayer claiming the dependency exemption for the child is the individual entitled to the credit. This is important to consider in cases involving divorced, separated, or unmarried parents.

Phase-out of the Tax Credit for Children

The credit is phased-out for upper-income taxpayers. The phase-out occurs based on the taxpayer’s adjusted gross income (AGI) with certain minor modifications (“modified adjusted gross income”). The phase-out begins at the following levels of modified AGI:

|Married filing joint return |$110,000 |

|Married filing separately |$ 55,000 |

|Unmarried taxpayers |$ 75,000 |

The otherwise allowable credit is phased out by $50 for each $1,000 (or fraction thereof) by which modified AGI exceeds the threshold amount. For example, a married couple filing jointly with one child this year would have no child credit if their modified AGI was more than $129,000. This is because their AGI exceeds $110,000 by $19,000 plus a fraction of $1,000. Therefore the credit is phased out by 20 x $50, or $1,000, the total amount of the credit.

The credit is phased out sequentially (rather than simultaneously) per child for taxpayers with more than one child. Therefore, taxpayers with more than one child will have a larger “phase-out range” for the credits. This is different from the phase-out of dependency exemptions for upper-income taxpayers. (Exemptions are phased-out simultaneously regardless of the number of exemptions claimed. For example, in 2008, the phase-out of personal exemptions begins at AGI of $239,650 for married couples filing a joint return.)

In addition, the child credit is refundable to the extent of the greater of:

(1) 15% of earned income above $12,050 for 2008, or

(2) for taxpayers with three or more qualifying children, the excess of the taxpayer’s social security taxes for the tax year over the earned income credit for the year (IRC Section 24(d)).

Tax Credit for Adoption Expenses

An Adoption Credit was signed into law in 2002. This credit of up to $11,650 per eligible child (for 2008) is available for qualified expenses paid in the course of adopting a child. This figure is subject to annual inflation adjustments. The limit on the credit is a cumulative limit per child. In other words, no more than the maximum amount may be claimed for any one child regardless of the number of years for which the credit is claimed for that child. Nevertheless, an additional credit or credits may be claimed for the adoption of more than one child. In addition, the credit has a unique application for adoptions of children with special needs. Similar to other credits, the adoption credit is phased-out for upper-income taxpayers. However, the phase-out income level is significantly higher than other credits.

Definition of an “Eligible Child”

An eligible child is a person who is either under the age of 18 or is physically or mentally incapable of self-care. A child with special needs is defined as a citizen or resident of the United States who is determined by state authorities to be unable to be placed for adoption without adoption assistance. Requirements for such a determination by state authorities include findings that the child should not be returned to his or her biological parents, and that there is a specific factor or condition that makes the child unable to be placed without adoption assistance.

Qualified Adoption Expenses

It is important for individuals considering adoption or in the process of adoption to understand what expenses qualify for the credit. Qualified adoption expenses include legal fees, court costs, attorney fees, and other related fees and costs that have the principal purpose of a taxpayer’s legal adoption of an eligible child or a child with special needs. However, costs associated with the adoption of a child of the taxpayer’s spouse or costs for surrogate parenting arrangements are not qualified expenses for purposes of the credit.

Special Rule for Adoptions of Children with Special Needs

The full amount of the adoption credit is allowed to taxpayers adopting a special needs child regardless of the amount of qualified adoption expenses paid by the taxpayer. This means that taxpayers will be eligible for the maximum credit even if they have little or even no actual adoption expenses. Special needs adoptions are typically less expensive than other adoptions. Congress enacted this provision to help taxpayers who have decided to adopt special needs children and to encourage these adoptions. The credit will not be available, however, until the year in which the adoption becomes final.

For adoptions of children other than special needs children, the amount of the credit will continue to depend on the amount of qualified expenses.

When is the Credit Claimed?

For tax years in which an adoption becomes final, the taxpayer is allowed to claim the credit for expenses paid during that year. For years in which qualified expenses are paid but in which the adoption does not become final, the taxpayer must claim the credit for those expenses for the tax year following the year in which the expenses are paid. If expenses are paid in a year following the year the adoption becomes final, the expenses may be claimed for the year in which they are made.

Foreign adoptions or adoptions of a child with special needs qualify for the credit only if the adoption becomes final and must be claimed in that year even if paid in a prior year.

There is a 5-year carryover period available for taxpayers whose allowable adoption credit exceeds their tax liability for the year the credit is first allowable.

Phase-out of Credit

The adoption credit is phased-out for taxpayers with adjusted gross income exceeding $174,730. The credit is completely phased-out at $40,000 above the threshold. Adjusted gross income for this purpose is determined with certain minor modifications similar to those used for the tax credit for children.

To calculate the amount of the credit that is phased out, divide the amount of the taxpayer’s adjusted gross income in excess of $174,730 by $40,000. Then multiply the resulting percentage by the otherwise allowable amount of the credit.

Related Income Exclusion

In planning for the adoption credit, it is important to note that an income exclusion is available for amounts paid by a taxpayer’s employer for qualified adoption expenses on behalf of the taxpayer/employee. Such amounts must be furnished under a nondiscriminatory adoption assistance program. However, the exclusion for adopting a special needs child applies regardless of whether the employee has qualified adoption expenses. The rules defining and limiting this exclusion for adoption assistance payments are similar to the rules just described for application of the adoption credit. For example, the dollar amounts of the available exclusion are the same as the dollar amounts of the credit. Any amounts excluded from gross income under such a program are not eligible to be treated as qualified adoption expenses for purposes of the adoption credit.

Child and Dependent Care Credit

This tax credit applies to expenses paid by individual taxpayers for the care of their dependents if the expenses are necessary to allow them to be gainfully employed. The amount of the credit currently ranges from 20 to 35 percent of qualifying expenses based on the taxpayer’s income level. The qualifying expenses upon which the credit percentages are based are subject to dollar amount limitations as explained below. The credit was enacted generally for the purpose of providing a tax credit for working parents with children in day-care facilities.

Eligible Expenses for the Credit

As stated above, the expenses must be incurred to allow the taxpayer to be gainfully employed for the credit to be available. The expenses must be paid by a taxpayer who has a household in which one or more “qualifying individuals” resides for more than half of the taxable year. Expenses must be paid either for household services or specifically for the care of a qualifying individual. A qualifying individual must fall within one of the following definitions:

1) the taxpayer’s “qualifying child” who is under the age of 13

2) an individual who is physically or mentally incapable of caring for himself or herself and is also the taxpayer’s dependent for tax purposes

3) the taxpayer’s spouse who is physically or mentally incapable of caring for himself or herself.

As a general rule, the expenses must be paid for services rendered inside the taxpayer’s home, unless the services are for the care of either the taxpayer’s dependent child who is under the age of 13 (i.e., day-care services), or for the care of another qualifying individual who regularly spends at least eight hours per day in the taxpayer’s household. As indicated, if the child has a disability and requires supervision, the age limit is waived. For example, an autistic16 year-old with behavioral disorders that is incapable of self-care and cannot be left unattended would qualify his or her parents for this credit. In no event, however, will expenses paid for an overnight camp be eligible expenses for the credit.

In addition, child-care related expenses are disallowed if paid to certain related individuals. Eligible expenses do not include payments for care provided by a child of the taxpayer who is under the age of 19 (such as a sister or brother of the qualifying individual). Also, eligible expenses do not include those paid for services rendered by any individual who is a dependent of the taxpayer for dependency exemption purposes. The purpose of this rule is to prevent child-care payments made to certain family members from generating a tax credit.

There is a limit on the amount of expenses that can be counted in calculating the allowable credit. For taxpayers caring for one qualifying individual, the maximum amount is $3,000 per year. If there are two or more qualifying individuals, the maximum amount is $6,000. Qualifying expenses may not exceed the amount of the taxpayer’s earned income for the year.

Calculation of the Credit

The allowable credit currently ranges from 20 to 35 percent of eligible expenses. The allowable percentage is reduced by one percent for each $2,000 (or fraction thereof) of adjusted gross income in excess of $15,000. The credit is fully reduced to 20 percent once the taxpayer’s AGI exceeds $43,000.

Coordination with Dependent-Care Assistance Programs

The same eligible expenses cannot be used for both the dependent-care credit and the income tax exclusion for amounts received from an employer-provided dependent-care assistance program. In addition, if a taxpayer is a participant in such a program, the maximum amount of qualifying expenses for credit purposes is reduced dollar for dollar paid from the employer program and excluded from the taxpayer’s gross income. As a result, taxpayers are often forced to choose between the income tax exclusion for such plans and the dependent-care credit. Generally speaking, if a married taxpayer or head of household is in a marginal tax bracket of 25 percent or higher, the exclusion provides a more efficient method of funding dependent-care expenses than the otherwise available credit amount.

Additional Rules for Married Couples

Special rules apply to married couples claiming the dependent-care credit, and include:

• Married couples must generally file a joint return to be eligible for the credit. However, if the spouses live apart for the last 6 months of the taxable year, the credit may be available even if separate returns are filed.

• Eligible expenses are limited to the earned income of the spouse with the lower earned income. Therefore, generally speaking, both spouses must be working to claim the credit, although there is no requirement of full-time employment.

• A significant exception to the rule just described involves spouses who are either full-time students for at least 5 calendar months during the year or who are incapable of self-care during the year. Such spouses are currently deemed to have a monthly earned income of $250 for each month during which they are students or incapable of self-care. If there are two or more qualifying individuals in the household, then such spouses are currently deemed to have $500 per month of earned income.

Earned Income Tax Credit

The idea behind the Earned Income Tax Credit (EITC) is to encourage economically disadvantaged to work by partially offsetting the social security taxes on wages. Appropriately, the EITC is not available to taxpayers who have unearned income (i.e., dividends, interest, gains of sales of securities) above a specified threshold ($2,950 in 2008). Families filing a married joint return with adjusted gross income in 2008 under $41,646 ($3,000 less if a taxpayer filing as single or head of household) may qualify for the Earned Income Tax Credit (EITC) based on the presence of two “qualifying children” in the taxpayer’s home. For EITC purposes, a “qualifying child” uses the same definition as for the dependency exemption – viz. a biological child, adopted child, step-child, or foster child, who resided with the taxpayer for more than six months during the calendar year, and is under age 19 at the end of the year or under the age 24 who are full-time students. Finally, a severely disabled child is a “qualifying child” regardless of age, even into adulthood, as long as the child continues to live with his/her parent(s). Note that a “qualifying child” for EITC does not have to meet the other requirements (i.e., support, gross income, joint return, citizenship) for a dependency exemption. EITC benefits are as high as $4,824 for families with two or more qualifying children for 2008, although the average EITC is generally less.

Conclusion

The number of individuals with special needs is escalating at unprecedented rates in our society. Just one example of this is the Center for Disease Control’s estimate that up to 500,000 individuals under the age of 21 having an Autism Spectrum Disorder (ASD) ().This may simply be a matter of better recognition of the special needs. After all, it wasn’t until 1991 that autism was added as a “special education exception” and, therefore, was not included in previously reported statistics. Now, autism is the sixth most commonly classified disability in the United States. Whether due to under-reporting or not, these increased numbers are already beginning to impact state and local governmentally funded programs as they face shortfalls, forcing parents to absorb more of their children’s medical care and other related expenses.

This article has given a brief overview of the deductions and credits which may be available under current tax law. However, parents of these special needs children should be aware that specific rules apply to each of these tax issues. For example, in order to claim the child’s educational expenses, parents must carefully examine the facts regarding medical expense deductions in facilities that are primarily educational and not special schools. Similarly, the deductions for medical conferences expenses are very case specific. Even the generally available credits for dependent care and earned income have multiple requirements and limitations. In the end, it is important to understand the substantial tax benefits that are available to those caring for children with special needs.

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