When’s Your Baby?

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5 Responses

  1. Jens Müller says:

    What the hell is an “embyro exchange”?

  2. James Joyner says:

    Hasn’t the requirement to supply a Social Security number obviated this discussion? My daughter was born New Year’s Eve and we still had to get her SSN before claiming her in April.

  3. Sarah Lawsky says:

    James Joyner–Excellent point–thanks. The taxpayer ID number (TIN) requirement (Section 151(e)) does indeed resolve the issue for the dependency exemption, and that is not at all clear in my post. But it does not resolve the issue for the adoption tax credit, so Cassman is still extremely helpful for our purposes, because it provides general insight into whether an “individual” for tax purposes includes a child not yet born.

    More details on the adoption tax credit TIN issue: it was my initial thought when Naomi first asked me the question of whether an adoption credit could be taken in this scenario. Section 23(f)(2) does ask the taxpayer to provide a taxpayer ID number (TIN), but it also says that the child’s name, age, and TIN must be included “if known,” and the legislative history says that “available” information must be provided. In other words, unlike for the dependency exemption, the social security number isn’t actually required for the adoption tax credit–it’s required only if you know it.

    An obsessive reader of IRS forms can get a sense of this from the instructions for Form 8839, the form that has to be filed to get the adoption tax credit, which says, with regard to this information, “If you do not give correct or complete information, your credit…may be disallowed” (emphasis added). That “may” is a concession. An auditor might try to disallow the adoption tax credit without a social security number, but I don’t think there’s a firm statutory basis to do so.

  4. Jens Müller says:

    OK. That practice is prohibited in Germany according to the Embryonenschutzgesetz (Embryos Protection Act) (misdemeanor punishable by up to three years in prison or a fine).

  5. Tim Zinnecker says:

    As one who has recent experience with the federal adoption tax credit, I found it interesting to slog through the provisions to determine when my wife and I could claim the credit. The year of expenses? The year we took the newborn home? The year the judge “finalized” the adoption?

    Looking forward to your post on that credit!