Paul L. Caron
Dean




Thursday, August 4, 2022

Georgia: Unborn Children Qualify For $3,000 Income Tax Dependent Exemption After Six Weeks

Update:  New York Times, Georgia Abortion Law Says a Fetus Is Tax Deductible

Georgia Department of Revenue, Guidance Related to House Bill 481, Living Infants and Fairness Equality (LIFE) Act:

Georgia DOR 4In light of the June 24, 2022, U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization and the July 20, 2022, 11th Circuit Court of Appeals ruling in Sistersong v. Kemp, the Department will recognize any unborn child with a detectable human heartbeat, as defined in O.C.G.A. § 1-2-1, as eligible for the Georgia individual income tax dependent exemption. The 11th Circuit’s ruling made HB 481’s amendment to O.C.G.A § 48-7-26(a), adding an unborn child with a detectable heartbeat to the definition of dependent, effective as of the date of the court’s ruling, which was July 20, 2022.

As such, on individual income tax returns filed for Tax Year 2022 where, at any time on or after July 20, 2022, and  through December 31, 2022, a taxpayer has an unborn child (or children) with a detectable human heartbeat (which may occur as early as six weeks’ gestation), the taxpayer may claim a dependent personal exemption as provided for under O.C.G.A § 48-7-26(a) and (b)(3) in the amount of $3,000.00 for each unborn child.  For Tax Year 2022, the deduction for dependent unborn children will be a subtraction on Line 12, “Other Adjustments,” of Form 500 Schedule 1.

Similar to any other deduction claimed on an income tax return, relevant medical records or other supporting documentation shall be provided to support the dependent deduction claimed if requested by the Department.

Additional information, including return instructions to claim the personal exemption for an unborn child with a detectable heartbeat, will be issued later this year along with other tax changes impacting Tax Year 2022 Georgia individual income tax returns. 

Washington Post, Georgia Says ‘Unborn Child’ Counts as Dependent on Taxes After 6 Weeks:

Under Georgia law, fetuses now have “full legal recognition” as living people. That means their parents can claim them as dependents on their tax returns — even before delivery.

The state’s department of revenue said Monday that it would begin recognizing “any unborn child with a detectable human heartbeat … as eligible for the Georgia individual income tax dependent exemption” — amounting to $3,000. Taxpayers must be prepared to provide relevant medical records and documents if requested by the department.

The tax benefit is a byproduct of a law that went into effect July 20 banning abortions after about six weeks of pregnancy. Georgia House Bill 481 was initially approved in 2019 but was deemed unconstitutional, given the protections granted by Roe v. Wade. Once that long-standing precedent was overturned in June, a federal appeals court cleared the way for Georgia’s abortion ban to become law. The court also agreed that “personhood” could be redefined to include fetuses. ...

The Washington Post has contacted the Georgia Department of Revenue seeking clarification. The department’s guidance delineates that additional information — “including return instructions to claim the personal exemption for an unborn child with a detectable heartbeat” — will be issued later this year. ...

Last month, a case in Texas made headlines after a pregnant woman was pulled over for driving alone in a high-occupancy lane. When the officers asked where the other passenger was, Brandy Bottone replied that her baby counted as a passenger, given the overturning of Roe and the state’s abortion policy.

She still got a ticket.

“The laws don’t speak the same language, and it’s all been kind of confusing, honestly,” she told The Post.

NPR, Pregnant? Georgia Says That Fetus Counts as a Dependent on Your Taxes:

"A state (e.g., GA) cannot dictate federal law. GA's decision will have no impact of the IRS or the Internal Revenue Code," he says. This tax policy change has far wider implications "from taxes and inheritance rights to education to population counts," says Elizabeth Nash, the Guttmacher Institute's principal policy associate for state issues.

For now, the policy change only applies to state tax returns. This state law has no effect on federal taxes, says Alex Raskolnikov, a professor of tax law at Columbia Law School.

"A state (e.g., GA) cannot dictate federal law. GA's decision will have no impact of the IRS or the Internal Revenue Code," he says.

https://taxprof.typepad.com/taxprof_blog/2022/08/georgia-unborn-children-qualify-for-income-tax-dependent-exemption-after-six-weeks.html

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