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Adoption expenses credit: foreign-born child.

Rev. Proc. 2005-31, superseding Notice 2003-15, provides a safe harbor for determining the finality of the adoption of a foreign-born child for purposes of the Sec. 23 adoption expenses credit and Sec. 137 income exclusion for employer-provided assistance. Sec. 23 provides a credit for qualified adoption expenses (QAEs) paid or incurred in connection with the adoption of an eligible child. Sec. 137 provides an exclusion from income for employer-provided adoption assistance for QAEs. Under a special rule applicable to the adoption of a foreign child who is not a U.S. citizen or resident at the time the adoption commenced, the credit and/or the exclusion is only available for adoptions that become final.


The Intercountry Adoption Act of 2000 (IAA), 42 USC Sections 14901-14954, will implement the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Convention).When the Convention enters into force, the IAA generally will apply to adoptions in which both the sending and receiving countries are parties to the Convention. A Convention adoption subject to the IAA will be final for Federal income tax purposes in the (1) tax year for which the Secretary of State certifies as final an adoption subject to IAA Section 301(b); or (2) year in which the state court enters a final decree of adoption (IAA Section 301(c)). The U.S. is expected to ratify the Convention in 2007. Rev. Proc 2005-31 provides a safe harbor for determining the finality of the adoption of a foreign-born child (1) until the Convention is ratified and (2) from a country not a party to the Convention after ratification.

Safe Harbors

Rev. Proc. 2005-31 provides separate safe harbors for the finality of the adoption and the tax year of finality. The tax year of finality is the year in which the adoption credit or assistance exclusion is recognized and reported on the adoptive parent's return. Determination of the tax year of finality is subject to the type of visa issued and to whether and when a domestic home state court acts in the adoption process.

Adoption finality: Under the safe harbor for the adoption finality, the IRS will treat an adoption of a foreign born child as final if:

1. A competent authority of a foreign-sending country has entered a decree of adoption with respect to the foreign-born child or has authorized the child to leave the foreign-sending country under a guardianship or legal custody arrangement; and

2. The child receives an immediate relative (IR) visa from the Department of State (DS).

The DS issues three classes of IR visas to foreign-born children. An IR2 visa is issued to a foreign-born child (not an orphan) adopted while under age 16 who has been in the legal custody of, and has resided with, the adoptive parent(s) for at least two years.

An IR3 visa is issued to an orphan after a full and final adoption has occurred in the foreign--sending country. An orphan is a foreign-born child under age 16 at the time an immigration petition is filed, who has suffered the loss of his or her parents or for whom the sole remaining parent has in writing irrevocably released the child for emigration and adoption. A full and final adoption establishes a parent-child relationship; it can occur only if both adoptive parents, or the sole adoptive parent (in adoptions by one parent) see the orphan before or during the adoption proceedings.

An IR4 visa is issued to an orphan if a simple adoption occurs in the foreign-sending country or legal guardianship or custody is granted to the prospective adoptive parent(s) or to an individual or agency acting as agent of the prospective parent(s). A simple adoption establishes a parent-child relationship; however, either one or both of the adoptive parents do not see the foreign-born child before or during the adoption proceeding. A re-adoption is an adoption or other recognition proceeding under home state law occurring after the entry of a foreign-born child into the U.S. on an IR2, IR3 or IR4 (simple adoption) visa.

Tax year of finality: The safe harbor for the tax year of finality for children who receive an IR2, IR3 or IR4 visa is either the tax year in which (1) the competent foreign authority enters a decree of adoption or (2) a home state court enters a decree of re-adoption or otherwise recognizes the decree of the foreign-sending country, if that tax year is one of the next two tax years after the one in which the competent authority enters the decree. Under this scenario, a taxpayer has some discretion in determining the tax year in which to recognize the credit or income exclusion.

The tax year of finality for children who receive an IR4 visa (guardianship or legal custody) is the tax year in which a home state court enters a decree of adoption.


The adoption of a foreign-born child must be final for the taxpayer to be eligible for the adoption credit or the adoption assistance income exclusion. For 2006, Rev. Proc. 2005-31 provides safe harbors for determining the finality of the adoption of a foreign-born child and the tax year of finality in which to take the adoption credit or to exclude the adoption assistance income.

For 2006, the maximum amount of QAEs eligible for the Sec. 23 adoption credit or the Sec. 137 adoption assistance income exclusion is $10,960. The adoption credit is phased out ratably for adjusted gross income between $164,410 and $204,410.

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Article Details
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Author:Robinson, Walter J.
Publication:The Tax Adviser
Date:Oct 1, 2006
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