Note: So as not to misquote or misinterpret this information, it has been taken directly from the IRS website.
Adoption Credit and Adoption Assistance Programs
Tax benefits for adoption include both a tax credit for qualified adoption expenses paid to adopt an eligible child and an exclusion for employer-provided adoption assistance. For tax years 1997 through 2009, the credit is nonrefundable. For 2010 and 2011, the credit is refundable. For tax years after 2011 the credit is nonrefundable. For 2013 the credit has a maximum amount (dollar limitation) of $12,970 per child.
Qualified adoption expenses
For both the credit and the exclusion, qualified adoption expenses, defined in section 23(d)(1) of the Code, include 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 that are directly related to and for the principal purpose of the legal adoption of an eligible child. An eligible child must be under the age of 18, or be physically or mentally incapable of caring for him- or herself.
Qualified adoption expenses do not include expenses that a taxpayer pays to adopt the child of the taxpayer’s spouse. Qualified adoption expenses include expenses incurred by a registered domestic partner who lives in a state that allows same-sex second parent or co-parent to adopt his or her partner’s child.
Income and dollar limitations
The credit and exclusion are each subject to an income limitation and a dollar limitation. The income limit on the adoption credit or exclusion is based on your modified adjusted gross income (MAGI). For tax year 2013, the MAGI phaseout begins at $194,580 and ends at $234,580. Thus, if your MAGI is below $194,580 for 2013, your credit or exclusion will not be affected by the MAGI phaseout but, if your MAGI for 2013 is above $234,580, your credit or exclusion will be zero. If your MAGI for 2013 falls between $194,580 and $234,580, your credit or exclusion will be reduced.
The credit and exclusion are each limited to a specific dollar amount ($12,970 for tax year 2013) for each effort to adopt an eligible child. The dollar limit for a particular year must be reduced by the amount of qualified adoption expenses used in the previous years for the same adoption effort. For example, if you claimed a $3,000 credit in connection with a domestic adoption in 2012 and paid an additional $12,970 of qualified adoption expenses in 2013 (when the adoption became final), the maximum credit you can claim in 2013 is $9,970 ($12,970 dollar limit, less $3,000 of qualified adoption expenses claimed in 2012).
The dollar limitation applies separately to both the credit and the exclusion, and you may be able to claim both the credit and the exclusion for qualified expenses paid in adopting an eligible child. However, any allowable exclusion must be claimed before any allowable credit is claimed. Any exclusion of expenses reduces the amount of qualified adoption expenses available for the credit, and you cannot claim both a credit and an exclusion for the same expenses. Examples 1, 2, and 3 illustrate these rules.
Example 1. In 2013 the following events occur: (a) You pay $12,970 of qualified adoption expenses in connection with an adoption of an eligible child; (b) your employer reimburses you for $2,970 of those expenses; and (3) the adoption becomes final. Your MAGI for 2013 is less than $194,580. Assuming all other requirements are met, you can exclude $2,970 from your gross income for 2013. However, the expenses allowable for the adoption credit are limited to $10,000 ($12,970 total expenses paid, less $2,970 employer reimbursement).
Example 2. The facts are the same as in Example 1, except that you pay $17,970 of qualified adoption expenses and your employer reimburses you for $5,000 of those expenses. Assuming all other requirements are met, you can exclude $5,000 from your gross income for 2013 and claim a $12,970 adoption credit ($17,970 total expenses paid, less $5,000 employer reimbursement).
Example 3. The facts are the same as in Example 1, except that you pay $30,000 of qualified adoption expenses and your employer reimburses you for $12,970 of those expenses. Assuming all other requirements are met, you can exclude $12,970 from your gross income for 2013. You can also claim a credit of $12,970. The remaining $4,060 of expenses ($30,000 total expenses paid, less $12,970 dollar-limited exclusion, less $12,970 dollar-limited credit) cannot be used for either the exclusion or the adoption credit.
Timing rules: When can you claim the credit?
The tax years for which you can claim the credit depend on when the expenses are paid, whether the adoption is domestic or foreign, and whether the adoption has been finalized. Generally, the credit is allowable whether the adoption is domestic or foreign. A domestic adoption is the adoption of a U.S. child (an eligible child who is a citizen or resident of the U.S. or its possessions before the adoption effort begins). A foreign adoption is the adoption of an eligible child who is not yet a citizen or resident of the U.S. or its possessions before the adoption effort begins.
In domestic adoptions, qualified adoption expenses paid before the year the adoption becomes final are allowable as a credit for the tax year following the year of payment (and the credit is allowable even if the adoption is never finalized). For a foreign adoption, however, qualified adoption expenses are allowable as a credit only if the adoption has been finalized. Qualified adoption expenses paid before and during the year when a foreign adoption is finalized are allowable as a credit for the year when it becomes final. Once an adoption becomes final, qualified adoption expenses paid during or after the year of finality are allowable as a credit for the year of payment, whether the adoption is foreign or domestic.
As a result of these timing rules, a taxpayer may sometimes claim a credit for both prior-year and current-year qualified adoption expenses in the year of finality. Example 4 illustrates them.
Example 4. An adoptive parent pays qualified adoption expenses of $3,000 in 2011, $4,000 in 2012, and $5,000 in 2013. In 2013, the adoption becomes final.
If the adoption was domestic, the adoptive parent may claim the $3,000 of expenses paid in 2011 as a credit on the parent’s 2012 tax return. The adoptive parent claims both the $4,000 paid in 2012 and the $5,000 paid in 2013 as a credit on the parent’s 2013 tax return. The $4,000 credit is claimed on the 2013 return because 2013 is the year after the year in which the $4,000 was paid, and the $5,000 is claimed on the 2013 return because 2013 is the year when the adoption becomes final. Since the adoption credit is nonrefundable for tax years ending after December 31, 2011, the $9,000 claimed on the 2013 tax return can be used to reduce any tax liability owed for 2013, and the excess, if any, will carry forward to the next year.
If the adoption was foreign, the adoptive parent claims all $12,000 in qualified adoption expenses ($3,000 paid in 2011, $4,000 paid in 2012, and $5,000 in 2013) on the adoptive parent’s 2013 tax return because 2013 is the year when the adoption becomes final.
Adoption of U.S. children who have been determined by a state to have special needs
In the case of an adoption of a U.S. child that a state has determined has special needs, you may be eligible for the maximum amount of credit or exclusion for the year of finality, even if you paid no qualified adoption expenses. A child is considered to have special needs for purposes of the adoption credit if all of the following conditions are met:
- The child was a U.S. citizen or resident when the adoption effort began;
- A state determines that the child cannot or should not be returned to his or her parent’s home; and
- A state determines that the child probably will not be adopted unless assistance is provided to the adoptive family.
The definition of “children with special needs” for purposes of the adoption credit is narrower than the definitions of “children with special needs” for other purposes. For purposes of the adoption credit, foreign children are not considered special needs. Additionally, many U.S. children who have disabilities are not considered special needs for the purposes of the adoption credit. Generally, special needs adoptions are the adoptions of children whom the state’s child welfare agency considers difficult to place for adoption.
There are five filing statuses:
- Married filing jointly
- Married filing separately
- Head of household, and
- Qualifying widow(er) with dependent child
If you file a return as single or as a qualifying widow(er) with dependent child, you are eligible to claim the adoption credit or the exclusion. Generally, if you are married, you must file a joint return to claim the adoption credit or exclusion. However, a married individual who is considered to be unmarried for tax purposes, as well as a single individual, may be eligible to file as head of household under some circumstances. If you file as head of household, you are eligible to claim the adoption credit or the exclusion. For more information on filing status, see Publication 501, Exemptions, Standard Deductions, and Filing Information.
If your filing status is married filing separately in the year when particular qualified adoption expenses are first allowable, you are ineligible to claim the credit or exclusion for the particular expenses. In order to claim the credit or exclusion, you may need to amend your return to change your filing status to “married filing jointly” within the period of limitations. Example 5 illustrates this rule.
Example 5. Husband and wife pay qualified adoption expenses of $3,000 in 2011, $4,000 in 2012, and $5,000 in 2013 in connection with a domestic adoption. In 2013, the adoption becomes final. Husband and wife file their 2011 and 2012 returns using the married filing separately filing status, but change their filing status to married filing jointly when filing their 2013 return.
Husband and wife’s filing status for 2011 is irrelevant for purposes of the adoption credit because the $3,000 of qualified adoption expenses that they paid in 2011 are not first allowable until 2012. But because husband and wife’s filing status for 2012 is married filing separately, they cannot claim the $3,000 of qualified adoption expenses that they paid in 2011. However, the $9,000 of qualified adoption expenses first allowable in 2013 ($4,000 paid in 2012, plus $5,000 paid in 2013) can be claimed on the 2013 tax return because husband and wife’s filing status for 2013 is married filing jointly.
Form 8839 and instructions
There is no longer a requirement to attach the adoption documentation with your tax return. However, documentation must be kept as part of your records.
The IRS encourages taxpayers to e-file their Federal income tax returns. The 2013 Form 8839 can be e-filed. Consequently, taxpayers who e-file their tax returns do not need to print and mail completed forms to the IRS.
Note: This is not to be construed as legal or tax advice. Please consult with an attorney or accountant to discuss the exact legal issues.