Level 15

The problem with some tax practitioners is they want to substitute their judgment, for that of Congress.

This is understandable, because Congress lately has shown as much judgment as (to use one of my mother's favorite phrases) God gave a goose.

However, when Congress says to use 2019 earned income if you want, instead of 2020 earned income if that is less, then that's what Congress meant.  If they had wanted to say "as long as 2020 is greater than zero," they could have said it.  When a statute is clear, it doesn't need imaginary words.  We pay judges to remind lawyers of that, all the time. 

And it's not like this is a brand-new question.  It was around last year; it's just that it applied to disasters on a smaller scale.  

Does anyone remember IRS putting out a news release that said, "We have noticed that some taxpayers in disaster areas are claiming EIC based on 2017 income when they had zero 2018 income, and we really can't allow that, so stop doing it!" ?

No?  I didn't think so. 

The Taxpayer Certainty and Disaster Tax Relief Act of 2019 included retroactive tax relief for those impacted by certain federally declared disasters for tax year 2018. The 2018 Publication 596 is not being revised at this time. Instead, consider whether the following important changes impact your 2018 tax return.

The tax benefits provided by this federal disaster relief include an election to use your 2017 earned income to figure your 2018 earned income credit. You may be able to use your 2017 earned income to figure your 2018 earned income credit (EIC) if:

  • Your 2017 earned income was greater than your 2018 earned income.
  • Your main home, or the main home of your spouse if filing jointly, was located in one of the federally declared disaster zones (or the disaster area outside of the disaster zone if you, and your spouse if filing jointly, were displaced from the main home due to the disaster) during any portion of that disaster's incident period occurring in 2018.