Head of Household for Mother of disabled son?

If your brother qualifies to be your mother's dependent for 2009 (and possibly 2010) - taking into account the Fair Market Rental value of the housing provided - she would file as Qualifying Widow (QW) instead of Head of Household. QW is taxed the same as Married Filing Joint, at rates that are superior to HOH.

The "permanent home remains in Virgina" is something I have a problem with. This implies that she doesn't live with the dependent for more than half of the year even if she's paying for all the household expenses. As I read this, her principal residence is Virgina, not Florida. Therefore, she may have him as a dependent but must file as single. (If she were spending more than 6 months in Florida, her principal residence would be Florida, and Virginia would be a vacation home.)

IRC Section 2(b)(1)(A) requires that the dependent's home be a "principal place of abode" as part of its definition. Although the code states directly that the residence in question must be the dependent's primary residence, "maintains as [the taxpayer's] home" implies that it must also be the claiming taxpayer's principal residence too.

In contrast, a taxpayer may be HoH for a dependent parent who does NOT live with him, but such isn't permitted for a child.

It only says that it has to be a place the taxpayer "maintains as his home...." Is there any reason it can't be the taxpayer's second or vacation home?

As an aside, why doesn't she make FL her state of residence. She'll save a load of state taxes. Looks like Virginia's state tax rate is essentially 5.75% on taxable income above 17k. West Virginia is 6.5% on taxable income over 60k.

It has to be the principal home.

(b) Definition of head of household (1) In general For purposes of this subtitle, an individual shall be considered a head of a household if, and only if, such individual is not married at the close of his taxable year, is not a surviving spouse (as defined in subsection (a)), and either?

(A) maintains as his home a household which constitutes for more than one-half of such taxable year the principal place of abode, as a member of such household, of? (i) a qualifying child of the individual (as defined in section 152 (c), determined without regard to section 152 (e)), but not if such child? (I) is married at the close of the taxpayer?s taxable year, and (II) is not a dependent of such individual by reason of section 152 (b) (2) or 152 (b)(3), or both, or (ii) any other person who is a dependent of the taxpayer, if the taxpayer is entitled to a deduction for the taxable year for such person under section 151, or

(B) maintains a household which constitutes for such taxable year the principal place of abode of the father or mother of the taxpayer, if the taxpayer is entitled to a deduction for the taxable year for such father or mother under section 151.

For purposes of this paragraph, an individual shall be considered as maintaining a household only if over half of the cost of maintaining the household during the taxable year is furnished by such individual.

So if a qualifying child is involved, the house has to be your principal home. If a parent, then the house does not have to be your principal home.

It says that it has to be the principal home of the dependent. It doesn't say that about the parent.

See where it says "principal place of abode... OF..." ? It means where the qualifying child lives. It doesn't, by its terms, specifically apply to the parent. It only requires that it be the parent's home - not principal home.

As I said, "maintains as his home" means the taxpayer's principal residence.

By rules of statutory contruction, the question is why Congress specified that it has to be the dependent's principal residence, but does not specifically do so for the parent. It is presumed that if Congress had meant to do that, they would have. Since they did not,

The Code, as you recall, provides for two homes. And in reality a person can have more than two homes, but without the tax benefits related to the first two.

As far as I recall the term "tax home" which says the taxpayer's "home" means his principal residence, only applies to travel expenses.

What you say makes sense. However, where does one find the IRS statute on this? Maybe they interpret the law a more taxpayer unfriendly way.

means

There are several ways the IRS interprets statutes. The most persuasive is in regulations, which are only issued after a rigerous process. But even the regulations have to be consistent with the statute. In this case it's possible that the courts could approve the IRS saying that a parent must have as his primary residence (rather than it being one of his homes) the same residence as a child he wishes to claim as a dependent.

However I'd think it equally likely (or even more likely) that a court would not agree that was the intent of Congress.

You can check the IRS website to see if they have other takes on this. But again, just because the IRS says something, even in a regulation, does not make it so from a legal standpoint.

Are there any such tax benefits other than mortgage interest deductibility?

Seth

I certainly agree with the last paragraph above. If it were otherwise, we wouldn't need the Tax Court! ;-)

If it weren't for "as [the taxpayer's] home a household ...", I'd say that as long as the taxpayer furnishes 50%+ of the dependent's primary residence and that they spend 184+ days together at ANY of the taxpayer's residences (primary or vacation), the conditions are met. However, those pesky words impose an additional condition that cannot be ignored. It is poorly written as compared to the rest of the Code as it exists today. Too many authors spoiled the law.