TP lives with Girlfriend

[helow]

Quick questions.

TP lives with his girlfriend all 2008. They have 2 children. Girlfriend does not work and she is not a qualifying person for anyone. I think it is in violation VA code to cohabit. TP is HOH since he support his kids 100%. What do I do with the girlfriend? Is she dependent or completely take off of the return?

Any help appreciated? Thanks

Helow

[helow]

I think she is a qualifying person since they lived together for the entire year. 2. She made less than 3500.00 dollars 3. Boyfriend provided more than half of the support costs. 4. No one else is claiming her.

I think she is dependent but am concerned about VA law.

Thanks

Helow

[kcjenkins]

If the state law makes it illegal to co-habitat, then he can not claim her. An individual meets the relationship test if, for the taxable year of the taxpayer, she has as her principal place of abode the home of the taxpayer and is a member of the taxpayer's household. § 152(d)(2)(H) . This individual need not be related to the taxpayer in any way. Reg. §1.152-1( This provision is designed to enable friends, distant relatives, and, in some cases, domestic partners, who are not otherwise relatives under the rules on dependents to qualify as dependents of the taxpayer by meeting the member of the household test. However, the provision is limited, in that an additional rule provides that such that an individual is not considered a member of the taxpayer's household if the relationship between the parties is in violation of local law. §152(f)(3) .

[joelgilb]

So many of these insane and unenforced old laws on the books. Wondering if VA even bothers to pursue this one.

[Cathy]

Quick questions.

TP lives with his girlfriend all 2008. They have 2 children. Girlfriend does not work and she is not a qualifying person for anyone. I think it is in violation VA code to cohabit. TP is HOH since he support his kids 100%. What do I do with the girlfriend? Is she dependent or completely take off of the return?

Any help appreciated? Thanks

Helow

Possibly the following will be of some help:

"Decades ago, it was illegal in every state for adult lovers to live together without being married. Today, on the other hand, just seven (7) states (North Carolina, Mississippi, Virginia, West Virginia, Florida, Idaho and Michigan) still criminalize cohabitation by opposite-sex couples, although anti-cohabitation laws are generally not enforced. Many legal scholars believe that in light of in Lawrence v. Texas, 539 U.S. 558 (2003) such laws making cohabitation illegal are unconstitutional (North Carolina Superior Court judge Benjamin Alford has struck down the North Carolina law on that basis)."

[Gail in Virginia]

Possibly the following will be of some help:

"Decades ago, it was illegal in every state for adult lovers to live together without being married. Today, on the other hand, just seven (7) states (North Carolina, Mississippi, Virginia, West Virginia, Florida, Idaho and Michigan) still criminalize cohabitation by opposite-sex couples, although anti-cohabitation laws are generally not enforced. Many legal scholars believe that in light of in Lawrence v. Texas, 539 U.S. 558 (2003) such laws making cohabitation illegal are unconstitutional (North Carolina Superior Court judge Benjamin Alford has struck down the North Carolina law on that basis)."

I practice in Virginia, and until recently was of the opinion that cohabitation violated local law and therefore prohibited a person from claiming a person of the opposite sex as a dependent. However, when this question was asked of the Virginia Department of Taxation recently, this is what they posted in their FAQ's site:

"6. In Virginia, does cohabitation violate local law? Specifically, can one person claim another as a dependent if that person has no income and lived with the taxpayer all year?

Neither of these issues is a matter of Virginia tax law. If a filer properly claims another person as a dependent for federal purposes, that person may also be claimed as a dependent on the Virginia return. However, the determination as to whether such a claim is proper on the federal return is a matter of federal tax law."

If you care to look at the whole site, it is http://www.tax.virginia.gov/site.cfm?alias=TaxProfessionals and go to Tax Professionals FAQ. After this response, I am not sure what to tell people. But if it is a matter of federal law, and if federal law states except where in violation of local law, it seems to me that you still can't claim your significant other in VA.

[kcjenkins]

I see it as the same way. Since VA is one of the seven states that still prohibits co-habitation, the FEDERAL code prohibits them from claiming them as a dependent. The prohibition is not in VA TAX CODE, it is in VA state law. Which is the "local law" that the feds are talking about. The feds never reference state TAX law, to determine how the federal tax law is applied. Note that the answer does NOT say, Yes, you can ignore state law on your Federal return, it merely says that the determination must be made at the Federal level first.