Qualifying Child: What's A Temporary Absence?

[A.G. Kalman]

This must be my season for this. I have had 3 situations
where I have determined that a child attending school away
from home was no longer a qualifying child and that one had
to fall back to the qualifying relative rules (unfortunately
they all failed the QR rules due to income of at least
$3300). More importantly, as they were no longer considered
to be living at home, two of the situations prevented the
parent from filing as HOH.

Basically, what had happened was that the students, who
range in age from 21 to 22, were attending out of state
schools and paying in state tuition (CA & IL). Prior to
leaving for college, they were all New Mexico residents.

Here are excerpts from the CA state college system and the
Univ. of IL system regarding who is eligible for in-state
tuition.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Physical presence in the State solely for educational
purposes does not constitute the establishment of California
residence under State law, regardless of the length of stay.

Students must provide documentation that they established
ties to California and relinquished ties to any prior state.
Evidence of intent to make California a permanent residence
includes committing to a long-term lease; paying California
income taxes as a resident, including taxes and income
earned outside California from the date residence is
established; registering to vote and voting in all
California elections; designating California as the
permanent address on all school and employment records,
including military records if in military service; obtaining
a California driver's license or California Identification
Card; obtaining California motor vehicle registration;
licensing for professional practice in California.

The absence of these indicia in other states during any
period for which California residence is claimed is also
pertinent. Documentary evidence is required.

Principal elements which determine residency are domicile in
Illinois and actions which evidence the intent to make
Illinois the person's permanent residence. A person has but
one domicile at any time. Mere physical presence in
Illinois, regardless of how prolonged, is insufficient to
establish residency without action and intention to make the
place a permanent residence and principal home. To establish
bona fide residency in Illinois under this policy, a person
must demonstrate presence and intent to reside permanently
in Illinois for reasons other than educational objectives.

The burden of establishing that a person is domiciled in
Illinois for other than educational purposes is upon the
person. The regulations, factors, and procedures enumerated
in this policy will be considered by the University in
determining residency status.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
It certainly appeared to me that in order to qualify for
in-state tuition one had to establish that there had been a
change in domicile for a purpose other than paying in-state
tuition. I concluded, that these children could no longer be
away from "home" for a temporary absence if they had to
prove that they changed domicile.

Am I being too harsh? is there a way to get around my
reasoning?

 

[Bill Brown]

Am I being too harsh? is there a way to get around my

reasoning?

No and I don't believe so.

One could quite easily be a resident of state X (Virginia
and North Carolina come to mind as examples of X) for state
income tax purposes and still not qualify for in-state
tuition at state supported colleges/ universities. If one
has established that one is entitled to in-state tuition, it
would be a very high hurdle to show that one was, for tax
purposes, really a resident of a home located in another
state.

 

[Mark Bole]

Am I being too harsh? is there a way to get around my

No and I don't believe so.

One could quite easily be a resident of state X (Virginia
and North Carolina come to mind as examples of X) for state
income tax purposes and still not qualify for in-state
tuition at state supported colleges/ universities. If one
has established that one is entitled to in-state tuition, it
would be a very high hurdle to show that one was, for tax
purposes, really a resident of a home located in another
state.

In the past, for CA resident tuition rate, there was a
waiting period essentially equal to one year -- in other
words one year after one established legal residence, one
could then take the in-state tuition rate. Woe unto you
who tried to double-dip on the income tax side (claim
residence for tuition purposes but disclaim residence for
tax purposes).

-Mark Bole

 

[doshan]

This must be my season for this. I have had 3 situations
where I have determined that a child attending school away
from home was no longer a qualifying child and that one had
to fall back to the qualifying relative rules (unfortunately
they all failed the QR rules due to income of at least
$3300). More importantly, as they were no longer considered
to be living at home, two of the situations prevented the
parent from filing as HOH.

Basically, what had happened was that the students, who
range in age from 21 to 22, were attending out of state
schools and paying in state tuition (CA & IL). Prior to
leaving for college, they were all New Mexico residents.

Here are excerpts from the CA state college system and the
Univ. of IL system regarding who is eligible for in-state
tuition.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Physical presence in the State solely for educational
purposes does not constitute the establishment of California
residence under State law, regardless of the length of stay.

Students must provide documentation that they established
ties to California and relinquished ties to any prior state.
Evidence of intent to make California a permanent residence
includes committing to a long-term lease; paying California
income taxes as a resident, including taxes and income
earned outside California from the date residence is
established; registering to vote and voting in all
California elections; designating California as the
permanent address on all school and employment records,
including military records if in military service; obtaining
a California driver's license or California Identification
Card; obtaining California motor vehicle registration;
licensing for professional practice in California.

The absence of these indicia in other states during any
period for which California residence is claimed is also
pertinent. Documentary evidence is required.

Principal elements which determine residency are domicile in
Illinois and actions which evidence the intent to make
Illinois the person's permanent residence. A person has but
one domicile at any time. Mere physical presence in
Illinois, regardless of how prolonged, is insufficient to
establish residency without action and intention to make the
place a permanent residence and principal home. To establish
bona fide residency in Illinois under this policy, a person
must demonstrate presence and intent to reside permanently
in Illinois for reasons other than educational objectives.

The burden of establishing that a person is domiciled in
Illinois for other than educational purposes is upon the
person. The regulations, factors, and procedures enumerated
in this policy will be considered by the University in
determining residency status.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
It certainly appeared to me that in order to qualify for
in-state tuition one had to establish that there had been a
change in domicile for a purpose other than paying in-state
tuition. I concluded, that these children could no longer be
away from "home" for a temporary absence if they had to
prove that they changed domicile.

Am I being too harsh? is there a way to get around my
reasoning?

I'm not sure it matters what CA wants or expects or what the
student signs. For example if the child returns home for
vacations, holidays, school recesses such as summer, etc.
and has the intent at the time to continue to return home, I
would think the child would be considered temporarily
absent. There is a case where a mother was incarcerated and
being held for murder for such a period during the year that
she did not qualify to claim the EIC for her child. She had
not yet been convicted of the crime. Because she stated
that her intent was to return home to her child should she
be found not quilty the court ruled that she was temporarily
absent. This may not be a very good case to cite... but it
still does go to what the persons intent is or was. If I
were the parent I would be claiming the exemption. Unless
the kids made quite a lot of money.

 

[A.G. Kalman]

I'm not sure it matters what CA wants or expects or what the
student signs. For example if the child returns home for
vacations, holidays, school recesses such as summer, etc.
and has the intent at the time to continue to return home, I
would think the child would be considered temporarily
absent. There is a case where a mother was incarcerated and
being held for murder for such a period during the year that
she did not qualify to claim the EIC for her child. She had
not yet been convicted of the crime. Because she stated
that her intent was to return home to her child should she
be found not quilty the court ruled that she was temporarily
absent. This may not be a very good case to cite... but it
still does go to what the persons intent is or was. If I
were the parent I would be claiming the exemption. Unless
the kids made quite a lot of money.

The reason for my post is in your opening statement of "I'm
not sure it matters..." The dilemma is that I think it does
matter. If a child has changed domicile from NM to CA or IL
and a person can only have one domicile (your one true home,
the one place you always intend to return to whenever you
leave), then it certainly seems that it is the visits to mom
and dad that are the temporary absences, not the visits to
their domicile.