Who is a Qualified Child – District Court Offers a Possible Expansion of the Test

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Low income taxpayer clinics deal regularly with the issue of qualifying children because they provide the basis for obtaining refundable credits. This issue plays out regularly in Tax Court but almost never in district court.  In the recent case of Mullins v. IRS, the district court cracks open the door to qualified child status in circumstances not ordinarily allowed albeit through the denial of a summary judgment motion rather than an affirmative victory for the taxpayer.  The facts in the case and the taxpayer’s tortured path through the IRS administrative process offer a glimpse at the challenges facing unrepresented individuals as they try to pursue remedies to which they claim entitlement.  Mr. Mullin’s persistence in the face of significant adversity bought him the victory on the summary judgment motion.  Perhaps he will carry the day if the matter goes to trial but he still faces an uphill climb.


Mr. Mullins, like many individuals in America, lives in a situation not well suited to the tax code. Les wrote about this recently as he described how the Code does not match reality in many family circumstances.  Many of the Code’s credits that benefit families presuppose traditional relationships with a husband and a wife and biological children. Things get messy when, as in this case, the taxpayer is not (or not yet) married but is living with and caring for children with whom he does not share a biological relationship. The non-traditional family circumstances implicates tax procedure because taxpayers in these situations often struggle to document the relationships or the time spent with claimed dependents. Representatives often struggle to explain how someone providing the support for a child or other dependent receives no credit for that support in the tax code as Les addressed in his article.

That is what is at issue in this case. In 2007, the year at issue in the refund suit, Mr. Mullins lived with his fiancée in her house together with her two children by a previous relationship.  He apparently provided almost all of the support for the family and his fiancée had some disabilities preventing her from contributing much financially other than the home.  When he filed his tax return for 2007, Mr. Mullins claimed his fiancée and her children as dependents.  Based on the facts available in the opinion, it appears that all three may qualify as his dependents pursuant to section 152(d) making them qualified relatives.  The problem here primarily concerns his claim of the earned income and child tax credits which require the dependents to meet the tests of qualified children rather than qualified relatives.  The court’s solution to his problem, at least from the perspective of summary judgment, provides a practical solution based on the realities of the family situation but could introduce significant administrability issues for the IRS.

For a blog dedicated to procedure, his travails in the administrative process offer a typical and disheartening picture of the effort to fight for the correctness of the position taken on the return. I take the facts as stated by the Court which seems to take the facts as provided by Mr. Mullins.  The IRS may have more to add on the give and take in this situation.  The process does look similar to that many clinic clients face.  When the IRS questioned his return, he responded and sent the IRS information to support his claimed deduction.  Mr. Mullins had the presence of mind to make note of the IRS employee ID# of the person with whom he communicated.  IRS employees are required to provide their ID# in communications with taxpayers.  They almost always do it at the outset of the conversation if it is a telephone conversation.  Almost no clients coming into my office take note of this identifying information and training students to take note of it can also provide challenges.  The fact that he kept a record of the employee with whom he spoke impressed me as I read this case.

The employee told him to amend his return and change his filing status from head of household to single, claim the dependents and his refund would issue. If the IRS employee told him to change his filing status, something only required if the dependents were section 152(d)(2)(h) dependents, it surprises me that the employee also said the full refund would issue since the employee seemed to have identified the source of the problem from a refundable credit standpoint; however, that was Mr. Mullins’ memory of the conversation as reported by the Court.  Mr. Mullins apparently amended his return to comply with the request of the IRS employee and no refund issued.  It seems possible that Mr. Mullins misunderstood the employee but for purposes of summary judgment, the Court gives Mr. Mullins the benefit of the doubt.  Of course, whether or not the employee said that a refund would issue, the statute and not the employee controls the outcome of the case.

Mr. Mullins continued to try to convince the IRS of the correctness of his return; however, the IRS eventually issued a notice of deficiency and he eventually petitioned the Tax Court. Late.  The dismissal of the Tax Court case allowed the IRS to assess the tax but did not stop Mr. Mullins from trying to convince the IRS of the correctness of his return.  His subsequent year’s refund was offset and appears to have fully satisfied the liability for 2007.  I imagined that in the meantime he married his fiancée allowing him to claim the earned income tax and child tax credits without challenge because her children became his qualified children.  He resent his amended return and the IRS now treated it as a claim for refund and formally issued a notice of claim disallowance.  He filed the complaint in district court which led to this opinion.  His persistence in pursuing the issue pro se into district court, not generally a pro se friendly forum like the Tax Court, not only speaks to his persistence but also to the contextual unfairness of the rule that denies the credits to someone like Mr. Mullins who has taken on quite a financial burden with no apparent assistance from the government.

I have seen a number of low income taxpayers go through a process similar to Mr. Mullins. I have not seen them reach district court nor have the reaction he received from the judge there.  The Court looked at his documents and decided that it was possible that he was the guardian of his fiancée’s children.  He had no court order establishing him as a formal guardian but some of the school records seemed to support the position that he served that role.  The Court knew that he needed something to overcome the hurdle necessary to make the children qualified children under section 152(c).  It found that he might be the childrens’ guardian during 2007 which would make them his foster children.  The broad definition of a guardian under Ohio law coupled with the records suggesting that he served that role allowed the Court to find enough inference of guardianship to deny summary judgment to the IRS.

The Court, however, did not stop there. It next discussed Mr. Mullin’s novel basis for determining that he met the requirements for claiming the children as qualified children.  He argued that since he could claim the mother of the children as his dependent, he should have the ability to claim the children.  Since the IRS did not address this theory, the Court determined it was not yet ripe for a decision.

Winning, or perhaps better put, not losing the summary judgment motion gives Mr. Mullins the chance to keep fighting for his exemptions and his credits.  The IRS seems focused on the credits and not the exemptions.  Succeeding on the merits of the issue will require him to establish something like the guardianship the Court found might exists for purposes of denying summary judgment.  While Mr. Mullins has done well to this point, his case points to the need for counsel to find the facts and arguments necessary to succeed.  If someone in the Dayton area wants some district court experience, I imagine Mr. Mullins would welcome assistance from a pro bono attorney.


  1. Robert Nassau says

    I am sympathetic toward, but not optimistic about, Mr. Mullins’ case.
    I don’t see evidence that any Court or placement agency was ever involved in giving him “guardianship.” Even the Ohio law seems to require that a guardian be appointed by the Probate Court. It seems like if he had that sort of paperwork he would have won the case long ago.
    I look forward to learning how this case turns out.
    In any event: props to him for his tenacity; he’d make a great LITC Student Attorney.

  2. Creative. I imagine the Tax Court will address the “DeFacto Guardianship” and “The Dependent of My Dependent is a Dependent” before Mr. Mullins case goes to the jury

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