Co- Habitation

Tyler Franks wrote

Ah, "Living in Sin" - one of my favorite subjects. I was of the opinion that it was illegal in Utah and possibly Arizona plus a plethora of municipalities across the country.

Yes, if and when the IRS has nothing better to do, they will go after these people for filing false tax returns as MFJ instead of Head of Household or for deducting unqualified dependents. If your clients have deep pockets, they can take it to Johnny and the Supremes who will almost certainly trash the law by a 6-3 or 5-4 vote.

I fail to see how this relationship is any different from a domestic partnership relationship. If your State allows common-law marriages, it's not a problem unless they really do not want to be married.

As a fall-back position, they can have an attorney prepare a marriage-by-contract.

There was a Tax Court case in the mid-80's in Indiana where an over-the-road truck driver claimed his ex-wife as a dependent and the IRS wanted to reclassify her as an unpaid domestic worker. The Tax Court was less than charitable toward the IRS.

Dick

Dick, it's not the MFJ situation that is being discussed. It's the "old" BF/GF/Child. Now if the child is theirs (ie. his) no problem HOH with the child, EIC & CTC, but can't claim the GF as dependent (assuming she has little or no income) in the 8 states, the 2 biggest being FL & Mich, (don't have my list real handy). Now if the child isn't his but is GF's and she doesn't have to file a return and lives in one of the 8 "bad" states, new IRS regs says he can claim child for dependency only. I'm in FL and this comes up all the time.

The direct answer to your question is: You would be violating federal regulations if you claimed a dependency exemption for someone you knew was not a dependent on a client's tax return. See 31 CFR 330.

That being said, I don't see how you could claim you were unaware as 1. to claim an unrelated person as a dependent, that person has to live with you for the whole year and 2. as a tax preparer you are expected to know the law as it relates to who is a qualifying relative.

I know of seven states that had/has? these laws on the books: North Carolina, Virginia, West Virginia, Florida, Michigan, Mississippi and North Dakota. I am also aware that the ACLU had filed a challenge to this law in NC. I have no idea what ever happened to the challenge.

I agree with Dick that any law that prohibits a couple from cohabiting will be held to be illegal, or at least unenforceable.

But that doesn't mean the law must sanction such relationships. So I'm not sure that a rule preventing someone from claiming a mere cohabitant as a dependent would be likewise unenforceable. Of course, I have not taken the time to research this issue.

Stu

I know it's illegal in Utah which allows or did allow common-law marriages and I think it is illegal in Arizona. A North Carolina Superior Court declared the statute unconstitutional in 2006 citing Willie and the Supremes 2003 decision Lawrence v. Texas - the landmark sexual privacy decision from which only Willie, Antonin, and Clarence dissented. Willie is no longer with us. I seriously doubt Johnny will replace him as a dissenter.

Dick

As for the cohabitation dependent, it is time to take the law to court where I'll lay odds of 4 to 1 that it will be declared unconstitutional.

As much as I approve of shacking up, I was always surprised that the IRS allowed HoH for dependents who were not your own. Let her have the County declare him the foster parent without foster parent compensation.

Dick

And I will agree with Stu. But must note that marriage is a State institution, not a Federal. Thus, the IRS defers to State Statutes.

A dependent who is unrelated to you must live with you for the entire tax year. Once meeting that criterion, why should it matter if they share a conjugal bed? It's government intrusion into privacy.

There may be something seriously wrong with me. In one of my earlier childhoods, I read that people begin with life with strong liberal leanings and become more conservative as they progress through life. Yet I am a stauncher fiscal conservative than I ever was, but have become an adamant social justice liberal. Susan says I always was this way.

Dick

AZ decriminalized it in 2001 when the Great State of New Mexico, the Land of Enchantment, decriminalized it. ND decriminalized in

You lost me on your comment about HOH. An unrelated person living in your household does not qualify you for HOH even if that person is your dependent. Are you saying we shouldn't allow HOH for parents, grandparents, brothers or sisters when you say "your own".

released on 12/18/2007 Notice 2008-05 that everybody should read. Remember prior to 2005, BF could claim child as "fosterchild" (treated as his own regardless of blood line), then Congress came up with a qualifiying child/relative rules and you couldn't claim a child if that child was the qualifiying child of another taxpayer. IRS said that someone with income less than the filing requirement was still a "taxpayer". Now IRS has reversed itself and you can amend back to 2005 if necessary.

Sure, and that was a much needed decision, though it still does not solve all situations.

But while it opens the door for BF to claim dependency exemptions for GF and GF's child if they all lived together for the entire year, it does not grant BF the right to claim either HoH or EIC based on these non-blood-related dependents.

HoH is not allowed for dependents not related to you by blood.

I agree with those who argue that state and local anti-cohabitation laws were declared unconstitutional several years ago in a case involving a couple of men from Texas.

Unfortunately, state cohabitation laws have not been found to be in violation of the US Constitution. Lawrence vs. Texas involved the conviction of two men for deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. The Supreme Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.

This had nothing to do with state cohabitation laws.

I disagree that the effect of Lawrence vs Texas was only to allow homosexuals to have sex in private. I agree with those who opine that this decision made unconstitutional all laws, including cohabitation statutes, that limit or ban private sexual conduct between/among consenting adults based on morality concerns.

If you can find an anti-cohabitation statute that is really based on something other than morality concerns I'd be glad to hear about it.

Bill Brown wrote: ...

It's somewhat difficult to find any behaviorial-controlling statute that doesn't have a morality concern as its basis so that's pretty much a specious argument imo.

"Bill Brown" wrote

So......going way off-topic.....heterosexuals have to in public - as we're not allowed to in private (at least in Texas)?

Whether or not we may all believe the laws are silly and/or stupid and may disagree with them, the facts are that for the remaining states that still have those laws on their books, there has not been any federal court decision that has determined that they are unconstitutional. That is why, the ACLU continues to file challenges in the remaining states. That is why it took a state court decision in NC to throw out the law. And that is why ND decriminalized it in 2007. All of those actions occurring long after Lawrence v. Texas.

No, it is not specious. It is the problem with the Texas law identified by the Supremes. The same problem likely exists with all anti-cohabitation laws. That is why many people believe that Lawrence v Texas had the effect of making most, if not all, anti-cohabitation laws to be unconstitutional.