Publication 968 (2004) TAX BENEFITS FOR ADOPTION

For Adoptive Parents

Dollar limit increased. For 2004, the maximum credit increases to $10,390. Also, the maximum exclusion from income of benefits under your employer's adoption assistance program increases to $10,390.

Introduction

This publication explains two tax benefits available to offset the expenses of adopting a child. The benefits are the adoption credit and the exclusion from income of benefits under your employer's adoption assistance program.

The first part of the publication is for persons who have recently adopted a child, are in the process of adopting a child, or are considering adopting a child. The second part is for employers who provide adoption assistance payments to workers.

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For Adoptive Parents

You may be able to take a tax credit of up to $10,390 for qualifying expenses paid to adopt an eligible child. The adoption credit is an amount that you subtract from your tax liability.

Also, up to $10,390 paid or reimbursed by your employer for qualifying adoption expenses under an adoption assistance program may be excludable from your gross income. (However, you cannot exclude this adoption assistance if your employer is an S corporation in which you own more than 2% of the stock or stock with more than 2% of the voting power.) An adoption assistance program for this purpose is a separate written plan set up by an employer to provide adoption assistance to its employees. See Adoption assistance program under For Employers, later, for more information.

You may claim both a credit and an exclusion for expenses of adopting an eligible child. For example, you may be able to claim a credit of up to $10,390 and also exclude up to $10,390 from your income. However, you cannot claim both a credit and an exclusion for the same expense.

Qualifying Expenses

Qualifying adoption expenses are reasonable and necessary adoption fees, court costs, attorney fees, traveling expenses (including amounts spent for meals and lodging) while away from home, and other expenses directly related to, and whose principal purpose is for, the legal adoption of an eligible child.

Nonqualifying expenses. Qualifying adoption expenses do not include expenses:

An eligible child must be:

Limits on the Credit or Exclusion

The credit and the exclusion for qualifying adoption expenses are each subject to a dollar limit and an income limit. These limits apply separately. The credit is also subject to a limit based on your tax liability. Figure these limits on Form 8839, Qualified Adoption Expenses.

How the exclusion limits affect your return. Because of the dollar limit and the income limit, all or part of your employer's adoption assistance payments may not qualify for the exclusion. On your tax return, you must include in your income any payments that do not qualify for the exclusion.

All of the adoption assistance payments will be shown in box 12 of your Form W-2, identified with the letter "T." None of the payments will be included with your taxable wages in box 1 of your Form W-2. Therefore, if all of the payments qualify for the exclusion, you will not need to adjust the amount of wages and other income you report on your tax return. But if any of the payments do not qualify for the exclusion, you must include in your income the payments that do not qualify. See Form 8839 and its instructions.

Caution. Your employer is not required to withhold income tax on payments for qualifying expenses under an adoption assistance program. If you must include any of the payments in your income, your withholding may not be enough to cover the tax on those payments. Therefore, you may need to give your employer a new Form W-4 to adjust your withholding, or make estimated tax payments, to avoid a penalty for underpayment of estimated tax.

Dollar Limit

The amount of your adoption credit or exclusion is limited to $10,390 for each effort to adopt an eligible child. For this purpose, an attempt that leads to the successful adoption of a child and any unsuccessful attempt to adopt a different child are treated as one effort. If you can take both a credit and an exclusion, the dollar limit applies separately to each.

If you and another person (other than your spouse if filing jointly) adopt a child and both claim the credit or exclusion, the dollar limit applies to your combined credit or exclusion amounts. You must divide the $10,390 limit between the two of you. You may divide it in any way you both agree.

The $10,390 amount is the maximum amount of qualifying expenses taken into account over all tax years. Therefore, it must be reduced by the amount of qualifying expenses taken into account in previous years for the same adoption effort.

Example 1. In 2004, you adopt two brothers, Bobby and Sam. Your qualifying adoption expenses paid in 2004 are $7,500 for Bobby and $7,500 for Sam. When you figure the credit, you can take all the expenses into account for both adoptions because they do not exceed the dollar limit of $20,780 ($10,390 for each child).

Example 2. You pay $3,000 of qualifying adoption expenses in an effort to adopt an eligible child in 2004. However, the adoption is not successful. Later in the year, you pay an additional $9,000 of qualifying adoption expenses for the successful adoption of a different eligible child. Under your employer's adoption assistance program, you are reimbursed for these expenses in 2004. For the dollar limit, you must treat the $12,000 as paid in one adoption effort. Your exclusion from income is limited to $10,390. You must include the remaining $1,610 in your income.

Income Limit

The income limit on the adoption credit or exclusion is based on modified adjusted gross income (modified AGI). For 2004, use the following table to see if the income limit will affect your credit or exclusion.

  IF your modified

 AGI is...              THEN the income limit...    

  ----------------------------------------------------------------

  $155,860 or less       will

not

affect your credit or exclusion.

  ----------------------------------------------------------------

  $155,861 to $195,859   will reduce your credit or exclusion.

  ----------------------------------------------------------------

  $195,860 or more       will eliminate your credit or exclusion.

  ================================================================

In 2004, you adopt an eligible child. Your qualifying adoption expenses are $12,000 and your modified AGI is $175,860. After you apply the dollar limit ($10,390), you apply the income limit. You use Form 8839 to figure your credit. The income limit reduces your credit by 50%. Your adoption credit is $5,195.

Modified AGI. Your modified AGI for purposes of the exclusion may be different from your modified AGI for purposes of the credit. To figure your modified AGI for the purpose of both the credit and the exclusion, add back the following items to your adjusted gross income (line 37 of Form 1040 or line 22 of Form 1040A).

To figure your modified AGI for purposes of the exclusion, also add back the student loan interest deduction and the tuition and fees deduction. Also, your modified AGI for purposes of the exclusion includes all benefits you received from your employer's adoption assistance program. Use the worksheet in the Form 8839 instructions to figure your modified AGI for purposes of the exclusion.

Tax Liability Limit

The amount of your allowable adoption credit for a year cannot be more than the total of your regular tax (after reduction by any foreign tax credit) and alternative minimum tax (AMT) for that year, minus the following amounts.

If your credit is more than this limit, you can carry forward the unused credit to your next 5 tax years, or until used, whichever comes first. Use the worksheet in the Form 8839 instructions to figure your credit carryforward.

Tip. The income limit, discussed earlier, does not apply to a credit carried forward.

When To Take the Credit or Exclusion

When you can take the adoption credit or exclusion depends on whether the eligible child is a citizen or resident of the United States (including U.S. possessions) at the time the adoption effort begins.

Child who is a U.S. citizen or resident. If the eligible child is a U.S. citizen or resident, you can take the adoption credit or exclusion even if the adoption never becomes final. Take the credit or exclusion as shown in the following tables.

  IF you pay  

 qualifying expenses in...               THEN take the credit in...

  ------------------------------------------------------------------

  any year before the year the adoption   the year

after

the year of

  becomes final                           the payment.

  ----------------------------------------------------------------

  the year the adoption becomes final     the year the adoption

                                          becomes final.

  ----------------------------------------------------------------

  any year after the year the adoption    the year of the payment.

  becomes final

  ==================================================================

 IF your employer pays for

  qualifying expenses under an            THEN take the

  adoption assistance program in...       exclusion in...

  ------------------------------------------------------------------

  any year                                the year of the payment.

  ===================================================================

If the eligible child is not a U.S. citizen or resident, you cannot take the adoption credit or exclusion unless the adoption becomes final. Take the credit or exclusion as shown in the following tables.

  IF you pay qualifying expenses in...    THEN take the credit in...

  -----------------------------------------------------------------

  any year before the year the adoption   the year the adoption

  becomes final                           becomes final.

  -----------------------------------------------------------------

  the year the adoption becomes final     the year the adoption

                                          becomes final.

  -----------------------------------------------------------------

  any year after the year the adoption    the year of the payment.

  becomes final

  =================================================================

For the credit, the amount of expenses paid or incurred before 2002 that can be taken into account is limited to the pre-2002 dollar limits. The limit on these expenses is $5,000 ($6,000 in the case of a child with special needs).

  IF your employer pays for

  qualifying expenses under an            THEN take the

  adoption assistance program in...       exclusion in...

  ---------------------------------------------------------------

  any year before the year the adoption   the year the adoption

  becomes final                           becomes final.

  ---------------------------------------------------------------

  the year the adoption becomes final     the year the adoption

                                          becomes final.

  ---------------------------------------------------------------

  any year after the year the adoption    the year of the payment.

  becomes final

  ===============================================================

If your employer makes adoption assistance payments in a year before the adoption of a foreign child is final, you must include the payments in your income in the year of payment. Then, on your return for the year the adoption becomes final, you can make an adjustment to take the exclusion. See Form 8839 and its instructions.

Caution. Your employer is not required to withhold income tax on payments for qualifying expenses under an adoption assistance program. If you must include the payments in income in the year paid because your adoption of a foreign child is not final, your withholding may not be enough to cover the tax on those payments. You may need to give your employer a new Form W-4 to adjust your withholding, or make estimated tax payments, to avoid a penalty for underpayment of estimated tax.

When adoption is final. When the adoption becomes final depends on the type of immediate relative (IR) visa under which the child enters the United States.

How To Take the Credit or Exclusion

You must file Form 8839 with either Form 1040 or Form 1040A to take the credit or exclusion. You should maintain records to support any adoption credit or exclusion claimed.

Married persons. If you are married, you must file a joint return to take the adoption credit or exclusion.

However, you are not considered married if you are legally separated under a decree of divorce or separate maintenance. In that case, you can take the credit or exclusion on a separate return.

Married and living apart. You can also take the credit or exclusion on a separate return if all of the following statements are true.

You must provide an identifying number for the child on Form 8839, line 1, column (f). Use whichever of the following numbers is appropriate.

If you are not sure whether the child is eligible for a social security number, contact your local Social Security Administration office or call 1-800-772-1213. If you need information about Form W-7 or Form W-7A, contact your local IRS office or call 1-800-829-1040.

No identifying number. If you cannot provide an identifying number for a child because you tried to adopt an eligible child but were unsuccessful or the adoption was not final by the end of 2004, complete the entries you can on Form 8839, line 1. See the instructions for line 1 of the form for additional information you may have to provide.

Special Rule for Adopting a Child With Special Needs

The maximum credit and exclusion, subject to the income and tax liability limits discussed earlier, will be allowed for the adoption of a child with special needs even if you do not have any qualifying expenses. For 2004, the maximum amount for each is $10,390.

Child with special needs. An eligible child is a child with special needs if he or she is a citizen or resident of the United States (including U.S. possessions) and a state (including the District of Columbia) determines that the child cannot or should not be returned to his or her parents' home and probably will not be adopted unless adoption assistance is provided to the adoptive parents. Factors used by states to determine if a child has special needs could include:

If your state has determined that the child you are adopting is a child with special needs, you should keep evidence of that fact for your records.

For Employers

If you have an adoption assistance program, your employees may be able to exclude from gross income payments or reimbursements you make for their expenses to adopt a child. Your employees cannot exclude payments or reimbursements for adoption expenses that were incurred before the adoption assistance program was in effect. For more information on this exclusion, see For Adoptive Parents, earlier.

Adoption assistance program. An adoption assistance program is a separate written plan of an employer that meets all of the following requirements.

An adoption assistance program can be part of your cafeteria plan. An adoption assistance program also includes programs that reimburse members of the Armed Forces and Coast Guard for adoption expenses.

Employment taxes. Amounts you pay or incur under your adoption assistance program for an employee's qualifying adoption expenses are not subject to income tax withholding. However, these amounts are subject to social security, Medicare, and federal unemployment taxes.

Form W-2. You must report all qualifying adoption expenses you paid or reimbursed under your adoption assistance program for each employee for the year in box 12 of the employee's Form W-2. Use Code "T" to identify this amount. Also include this amount in the totals for social security wages in box 3 and Medicare wages in box 5. However, do not include this amount with the employee's wages in box 1.

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