Household size and college kids

[BrokeOR]

I had two bk attorneys give me two different and equally assertive answer on the size of our household.

Two adults plus our 18 year old son who is away at college. His permanent address is our home and he is in our home for 5 months a year (1 month at Christmas plus 4 months summer break).

One attorney asserts we are a 3 person household, the other says we're two.
Any ideas on the differences of opinion? Has anybody gone through this?

[drew999999]

My assumption would be that if you claim your son on your federal taxes as a dependent, then you should be able to have him as a family member on your 13.

Could be wrong though, but possibly something to help with your research.

[woeisme]

The reason you got two totally different replies is because there is no clear cut answer to this question. The new BK law says you must list "household" size in the Means Test, but then Congress in their infinite wisdom never defines what "household size" is or means. Some would consider it "heads in beds" which might exclude your college-age kid since he spends more time at school than home, while others consider using the same criterion the census uses to define # in household (which would include college kids I think) since that is where the "median income" numbers come from, but basically it's local custom (and future case law waiting to be written) to really determine how to count # in the household in "gray" areas like yours. I'd go with the lawyer who sounds like he's willing to go to bat for you to count college age kid, he may get challenged on it by the court, but it's possible your case might be the one that sets the precedent. Beats the lawyer who's already thrown in the towel, willing to go the "safest" route since it's at your expense, not his!

[BCA2009]

Do you provide any other support for him? If he stays in your home part of the year and you provide some support for him other parts of the year, I would include him. When do you plan on filing?

If you file in the summer when he is home, I think you include him with a clear conscience.

But then you have to consider his income if he works. Does he contribute anything to the household when he is home?

[woeisme]

Good point BCA, timing may also be key. I've read some BK laws that depend on what situations are when filing, some that depend on confirmation date (for example $ in cash and bank accounts) so there is a real good argument to be made for filing based on what the living situation is at the moment the case is filed/confirmed.

[MSbklawyer]

The reason you got two totally different replies is because there is no clear cut answer to this question.

Exactly right. Count everybody and let the trustee object to those he would exclude.

[Flamingo]

The key here is if you claim your son as a dependent. If you do, he is part of your household as he must reside with you for over six months each year and you must provide over half of his support.

[BCA2009]

The key here is if you claim your son as a dependent. If you do, he is part of your household as he must reside with you for over six months each year and you must provide over half of his support.

The IRS rules for for dependents and the BK rules for number in household are totally different. It is possible to count someone as a dependent for IRS purposes who doesn't live with you at all.

On the otherhand, you could have a large household where most of the residents do not qualify for dependent status.