Did your tax preparer or the IRS tell you that you qualify to take a tax deduction for your foster child?
The answer should be YES, if you meet these simple requirements:
–child was continuously in your care for at least six months of the tax year;
–child is under age 19 (or 24 if disabled);
–child is an American citizen with a valid social security number (SSN).
For in-depth information on how to claim your foster child on your taxes, click here for the Internal Revenue Service Publication 501, Exemptions, Standard Deduction and Filing Information.
If you don’t see your foster child’s SSN anywhere in papers you were given by the social worker, placing agency, child’s attorney or medical providers (such as hospital discharge papers), you will need to obtain the SSN in order to claim a tax deduction.
Ask the child’s social worker for the child’s SSN well before tax season. That way, there will be plenty of time if needed to pursue your right to know the SSN if your initial request for it is denied—as too often happens.
There is no federal law or regulation preventing child welfare agencies from disclosing to foster parents the social security number (SSN) of a child in their care so they can list those numbers on their tax returns. Some states actively assist foster parents seeking their foster child’s SSN. New York, for example, provides foster parents with a simple one-page request form that does not need a judge’s approval:
California law, a law first proposed and written by attorney Deborah Dentler in 2002, requires agencies to provide foster parents with the foster child’s social security number (SSN) if the agency knows the number.
Welfare and Institutions Code section 16503.5, requires that the Caregiver Placement Agreement “shall provide, at a minimum, the contact information for the placing agency’s social worker and the worker’s supervisor, including but not limited to, telephone numbers, facsimile numbers, and identifying information about the child, including but not limited to, the child’s social security number, if available….” and the same statute further provides that a county placing agency may “modify forms to meet local needs by adding to the form requirements for information, but may not delete the form’s core elements….”
This law is currently being ignored by the Los Angeles Department of Children and Family Services. Los Angeles requires judges, not social workers, to decide whether and when to give foster parents a social security number.
Los Angeles County’s current written policy violates section 16503.5 and impedes the right of foster parents to obtain the information they need to exercise their rights under federal tax law to claim their foster child on their tax returns.
Los Angeles DCFS policy manual states:
Under specific circumstances caregivers may claim foster children on their tax returns. It is incumbent upon the caregiver to meet the specific requirements that allow this. DCFS does not determine whether or not the caregiver has met the requirements. DCFS does not provide social security numbers of foster youth to anyone for security purposes, therefore, if a caregiver asks DCFS for a foster youth’s social security number for tax purposes, the CSW shall ask the court to decide whether or not to grant the caregivers request.
Unless and until the County can be persuaded to modify its policy, L.A. caregivers are stuck with it for now. This means Los Angeles foster parents seeking their foster child’s social security number should look in the placement agreement and, if the number is not there, contact the social worker, and ask her to follow DCFS policy by asking the court for permission to give you the number. There is no formal mechanism by which the social worker “asks the court.” There is no form for doing so, and the caregiver will generally not be told when the judge will consider the request.
So, on the surface at least, it seems that California’s foster parents do have the right to know their foster child’s SSN.
In reality, foster parents often face obstacles when seeking their foster child’s SSN. Some local agencies have adopted internal rules that embroil foster parents in a nearly-impenetrable maze of red tape. And many social workers, children’s attorneys and even some judges are misinformed about the law and believe caregivers either can’t or shouldn’t claim foster children on tax returns.
Sometimes, of course, your foster child’s social worker just doesn’t know the SSN and can’t locate it when you need it to file your tax return. Sometimes a child comes into foster care during an emergency that makes it is impractical or impossible for the social worker to learn the child’s SSN quickly. In the vast majority of cases, however, the social worker will be able to locate and interview at least one parent or close relative who knows the child’s SSN. And in time, the agency is typically able to obtain a copy of the child’s birth certificate, which allows the agency to ask SSA for the child’s number. Once the social worker knows a foster child’s SSN, it must be disclosed to the child’s caregiver (foster parent or relative caregiver) upon request, under California law.
This law is frequently disobeyed. Some social workers believe foster parents cannot legally claim a foster child on their tax return. Some social workers refuse to provide a child’s SSN on the ground that doing so might constitute or facilitate “identity theft.”
Some social workers think a foster parent should be content with the monthly stipend he or she receives. Some frown upon the very notion that a foster parent can take a tax deduction for caring for a foster child. Our office has heard many lawyers and judges espouse these same ignorant beliefs. ALL ARE ILLEGITIMATE REASONS FOR REFUSING TO PROVIDE A CAREGIVER WITH A SOCIAL SECURITY NUMBER.
The fact that a caregiver receives a monthly check to cover some (hardly all!) of the costs of raising a foster child has no bearing on the caregiver’s right to claim the foster child on a tax return. The foster care payment is not “income” earned by the child, so it does not contribute to the calculation for tax purposes of whether the child contributed to six months of more of his or her own support. Foster payments are the state’s way of reimbursing caregivers for costs incurred in feeding and housing and clothing a child. These reimbursements are not income and have no effect on eligibility to take a tax deduction for the child, no matter how much a social worker or judge might want to rewrite the tax code.
If your child’s social worker refuses to give you the child’s SSN, follow these steps:
1. Send an email or letter (make a paper trial, don’t just phone) to the social worker, citing the law, and enclose a copy of the law. Many social workers are unaware of the law. Be patient with the social worker while your request is taken up the chain of command. The social worker may need to confer with a supervisor or go up the chain of command to obtain a county lawyer’s opinion. Keep a careful record of what the attorneys says and does in response to your request for help.
2. If step 1 fails, contact the child’s attorney. As the attorney to obtain the SSN from the social worker. The child’s attorney may not be familiar with the applicable state law. Provide a copy by email or letter (make a paper trail). Keep a careful record of what the attorneys says and does in response to your request for help.
3. If steps 1 and 2 fail, research your county’s written procedures that govern what social workers are required to do when asked for a child’s SSN. Procedures vary from county to county.
Ask the social worker to review (perhaps with her supervisor) the County agency’s procedures. Your county’s procedures may require that you complete some forms and submit them to the child’s judge, to obtain the SSN. Insist that your social worker help you complete any paperwork required. Frequently, social workers are unfamiliar with the agency’s procedures, so you may need to point them out. If the social worker refuses to assist you, complain (politely) to the social worker’s supervisor and then that person’s supervisor. Keep good notes. Try to get the agency to respond in writing.
4. If the agency will not help you, complain to the Fostercare Ombudsman for your county, and the State of California’s Foster Care Ombudsman.
5. If all else fails, locate your nearest Social Security Administration branch office and walk in to request the child’s SSN. Explain you are the child’s foster parent and you need the SSN in order to file your tax return. You should not be asked about (nor should you volunteer) any information about the child’s reason for being in care or any information about the child’s social worker or court case.
You will be asked to show some or all of the following: your identification (driver’s license or state-issued ID or passport), your foster placement agreement/relative caregiver placement agreement, your adoptive placement agreement (if any), or your court order of adoption (if the adoption has been finalized). You will be asked for a copy of the child’s birth certificate. If you do not have a birth certificate, other forms of identification will sometimes be accepted, such as the child’s health insurance card (Medicaid, MediCal). Commonly, the SSA employee will give you the child’s SSN on the spot if it can be found with a quick check of computer records.
6. Try other sources. Sometimes, you can spot the child’s SSN in paperwork you may have been handed by a social worker or medical provider. Asking the child’s parents or other relatives is another approach, if you have a friendly relationship with them. A biological parent is free to disclose his own child’s SSN.