[whelessm]

I have submitted last September, 2010, a W-7 to Austin for an ITIN for my child, 12 years old. She was adopted by me, final in 2009. The adoption process was begun in 2007. Everything I read from the IRS says she can be declared as a dependent. We all live overseas and she has never entered the US, thus no date of entry on the W-7. The IRS even explains that while processing a W-7, a date of entry is not needed if the child is a foreign adoption.

However, even though the IRS makes it clear she can have an ITIN, her application was denied. Unfortunately, the denial was the result of not getting the info explaining the missing date of entry. By the time I got the 45-day notice, I had around a week to get the answer to them. Thus, was informed it had not been processed and do it again, if an ITIN is still needed.

So, I have submitted an second attempt and this time included a letter explaining the lack of a date of entry. Unfortunately, I got the same letter from them asking for the date of entry.

Incidentally, the W-7 was sent with a 1040X for 2007 and of course I included the appropriate documents for proof of citizenship, adoption etc.

1. If I get denied again, do I need to send all the original documents again or do they remain on file?

2. Am I understanding correctly the eligibility for a non-resident child to be considered as a dependent?

[MukatA]

A dependent must be US citizen or resident.
IRS does not process ITIN application for a dependent child (foreign alien) unless child lived was in US even for a single day.

[whelessm]

Thanks. The IRS documents I have read all refer to the child as having met the "citizen test" if the child lived with the US citizen all year (for example page 22 of 2009 Form 1040A instructions... If you are a US citizen or US national and your child lived with you all year as a member of the household, that child meets the citizen test.")

I only use that year and instructions as an exmple, but I have seen language to that effect in other places with IRS forms and documents (2007 1040A instructions for example.)

In pub 501 it is less clear but says on page 12, table 5 Footnote 1. "There is an exception for certain adopted children." referring to the requirement to be a US citizen etc.

Tax Topic 857 says in part "However, if you are living abroad and have adopted or have legally placed in your home pending adoption, a foregin child that child may be elgible for an ITIN."

There was also an entry in the IRS IRM 3.21.263.5.3.5.13 line 6 d "W-7 applications for a foreign child that is pending adoption by US citizen that live overseas (other than the Military) will be considered valid as long as a tax return is attached and other W-7 requirements are met. A date of entry is not required."

I assumed that the W-7 was simply processed as "incomplete" when it was noted that there was no date of entry. Just the same, the instructions in the IRM seem to make it quite clear that a date of entry is not required.


It is these IRS comments that lead me to think I can claim the child as my dependent.

Does anyone know if the processing center in Austin keep the original documents "on file"? For example, if there is a hard denial, does that mean any follow-on query by me has to have the same original documents submitted again.