IRS Definitions and Explanations, Page 4
When To Take the Credit or Exclusion
When you can take the adoption credit or exclusion depends on whether the eligible child is a citizen or resident of the United States (including U.S. possessions) at the time the adoption effort begins.
Child who is a U.S. citizen or resident.
If the eligible child is a U.S. citizen or resident, you cantake the adoption credit or exclusion even if the adoption never becomes final.Take the credit or exclusion as shown in the following tables.
| IF you pay qualifying expenses in... | THEN take the credit in... |
|---|---|
| any year before the year the adoption becomes final | the year after the year of the payment. |
| the year the adoption becomes final | the year the adoption becomes final. |
| any year after the year the adoption becomes final | the year of the payment. |
| IF your employer pays for qualifying expenses under an adoption assistance program in... | THEN take the exclusion in... |
|---|---|
| any year | the year of the payment. |
Foreign child.
If the eligible child is not a U.S. citizen or resident, you cannot take the adoption credit or exclusion unless the adoption becomes final. Take the credit or exclusion as shown in the following tables.
| IF you pay qualifying expenses in... | THEN take the credit in... |
|---|---|
| any year before the year the adoption becomes final | the year the adoption becomes final. |
| the year the adoption becomes final | the year the adoption becomes final. |
| any year after the year the adoption becomes final | the year of the payment. |
Note. For the credit, the amount of expenses paid or incurred before 2002 that can be taken into account is limited to the pre-2002 dollar limits. The limit on these expenses is $5,000 ($6,000 in the case of a child with special needs).
| IF your employer pays for qualifying expenses under an adoption assistance program in... | THEN take the exclusion in... |
|---|---|
| any year before the year the adoption becomes final | the year the adoption becomes final. |
| the year the adoption becomes final | the year the adoption becomes final. |
| any year after the year the adoption becomes final | the year of the payment. |
If your employer makes adoption assistance payments in a year before the adoption of a foreign child is final, you must include the payments in your income in the year of payment. Then, on your return for the year the adoption becomes final, you can make an adjustment to take the exclusion. See Form 8839 and its instructions.
Caution: Your employer is not required to withhold income tax on payments for qualifying expenses under an adoption assistance program. If you must include the payments in income in the year paid because your adoption of a foreign child is not final, your withholding may not be enough to cover the tax on those payments. You may need to give your employer a new Form W–4 to adjust your withholding, or make estimated tax payments, to avoid a penalty for underpayment of estimated tax.
When adoption is final. When the adoption becomes final depends on the type of immediate relative (IR) visa under which the child enters the United States.
IR-3 visa. The adoption of a child who enters the United States on an IR-3 visa is treated as final in the year the competent authority enters a decree of adoption. The competent authority is the court or other governmental agency of the foreign country that has jurisdiction and authority to make decisions in matters of child welfare, including adoption.
Other IR visas. The adoption of a child who enters the United States on an IR visa other than an IR-3 visa, is treated as final in the year in which a court of the state in which the child and parents reside enters a decree of adoption, re-adoption, or otherwise recognizes the adoption decree of the foreign country.
Credits: U.S. Internal Revenue Service
