26 USC 32 - Earned income

Collapse to view only § 32. Earned income

§ 31. Tax withheld on wages
§ 32. Earned income
§ 33. Tax withheld at source on nonresident aliens and foreign corporations
§ 34. Certain uses of gasoline and special fuels
§ 35. Health insurance costs of eligible individuals
§ 36. First-time homebuyer credit
[§ 36A. Repealed.
§ 36B. Refundable credit for coverage under a qualified health plan
[§ 36C. Renumbered § 23]
§ 37. Overpayments of tax

§ 31. Tax withheld on wages

(a) Wage withholding for income tax purposes

(1) In general

(2) Year of credit

(b) Credit for special refunds of social security tax

(1) In general

(2) Year of credit

(Aug. 16, 1954, ch. 736, 68A Stat. 12; Pub. L. 94–455, title XIX, § 1906(b)(13)(D), Oct. 4, 1976, 90 Stat. 1834; Pub. L. 97–248, title III, §§ 302(a), 308(a), Sept. 3, 1982, 96 Stat. 585, 591; Pub. L. 97–354, § 3(i)(4), Oct. 19, 1982, 96 Stat. 1691; Pub. L. 97–448, title III, § 306(b)(1), Jan. 12, 1983, 96 Stat. 2405; Pub. L. 98–67, title I, §§ 102(a), 104(d)(2), Aug. 5, 1983, 97 Stat. 369, 379; Pub. L. 98–369, div. A, title IV, § 471(c), title VII, § 714(j)(2), July 18, 1984, 98 Stat. 826, 962.)

§ 32. Earned income

(a) Allowance of credit

(1) In general

(2) LimitationThe amount of the credit allowable to a taxpayer under paragraph (1) for any taxable year shall not exceed the excess (if any) of—

(A) the credit percentage of the earned income amount, over

(B) the phaseout percentage of so much of the adjusted gross income (or, if greater, the earned income) of the taxpayer for the taxable year as exceeds the phaseout amount.

(b) Percentages and amountsFor purposes of subsection (a)—

(1) Percentages

(2) Amounts

(A) In general

(B) Joint returns

(1) Eligible individual

(A) In generalThe term “eligible individual” means—

(i) any individual who has a qualifying child for the taxable year, or

(ii) any other individual who does not have a qualifying child for the taxable year, if—(I) such individual’s principal place of abode is in the United States for more than one-half of such taxable year,(II) such individual (or, if the individual is married, either the individual or the individual’s spouse) has attained age 25 but not attained age 65 before the close of the taxable year, and(III) such individual is not a dependent for whom a deduction is allowable under section 151 to another taxpayer for any taxable year beginning in the same calendar year as such taxable year.

(B) Qualifying child ineligible

(D) Limitation on eligibility of nonresident aliens

(E) Identification number requirementNo credit shall be allowed under this section to an eligible individual who does not include on the return of tax for the taxable year—

(i) such individual’s taxpayer identification number, and

(ii) if the individual is married, the taxpayer identification number of such individual’s spouse.

(2) Earned income

(A) The term “earned income” means—

(i) wages, salaries, tips, and other employee compensation, but only if such amounts are includible in gross income for the taxable year, plus

(ii) the amount of the taxpayer’s net earnings from self-employment for the taxable year (within the meaning of section 1402(a)), but such net earnings shall be determined with regard to the deduction allowed to the taxpayer by section 164(f).

(B) For purposes of subparagraph (A)—

(i) the earned income of an individual shall be computed without regard to any community property laws,

(ii) no amount received as a pension or annuity shall be taken into account,

(iii) no amount to which section 871(a) applies (relating to income of nonresident alien individuals not connected with United States business) shall be taken into account,

(iv) no amount received for services provided by an individual while the individual is an inmate at a penal institution shall be taken into account,

(v) no amount described in subparagraph (A) received for service performed in work activities as defined in paragraph (4) or (7) of section 407(d) of the Social Security Act to which the taxpayer is assigned under any State program under part A of title IV of such Act shall be taken into account, but only to the extent such amount is subsidized under such State program, and

(vi) a taxpayer may elect to treat amounts excluded from gross income by reason of section 112 as earned income.

(3) Qualifying child

(A) In general

(B) Married individual

(D) Identification requirements

(i) In general

(ii) Other methods

(4) Treatment of military personnel stationed outside the United States

(d) Married individuals

(1) In general

(2) Determination of marital statusFor purposes of this section—

(A) In general

(B) Special rule for separated spouseAn individual shall not be treated as married if such individual—

(i) is married (as determined under section 7703(a)) and does not file a joint return for the taxable year,

(ii) resides with a qualifying child of the individual for more than one-half of such taxable year, and

(iii)(I) during the last 6 months of such taxable year, does not have the same principal place of abode as the individual’s spouse, or(II) has a decree, instrument, or agreement (other than a decree of divorce) described in section 121(d)(3)(C) with respect to the individual’s spouse and is not a member of the same household with the individual’s spouse by the end of the taxable year.

(e) Taxable year must be full taxable year

(f) Amount of credit to be determined under tables

(1) In general

(2) Requirements for tablesThe tables prescribed under paragraph (1) shall reflect the provisions of subsections (a) and (b) and shall have income brackets of not greater than $50 each—

(A) for earned income between $0 and the amount of earned income at which the credit is phased out under subsection (b), and

(B) for adjusted gross income between the dollar amount at which the phaseout begins under subsection (b) and the amount of adjusted gross income at which the credit is phased out under subsection (b).

[(g) Repealed. Pub. L. 111–226, title II, § 219(a)(2), Aug. 10, 2010, 124 Stat. 2403]

[(h) Repealed. Pub. L. 107–16, title III, § 303(c), June 7, 2001, 115 Stat. 55]

(i) Denial of credit for individuals having excessive investment income

(1) In general

(2) Disqualified incomeFor purposes of paragraph (1), the term “disqualified income” means—

(A) interest or dividends to the extent includible in gross income for the taxable year,

(B) interest received or accrued during the taxable year which is exempt from tax imposed by this chapter,

(i) gross income from rents or royalties not derived in the ordinary course of a trade or business, over

(ii) the sum of—(I) the deductions (other than interest) which are clearly and directly allocable to such gross income, plus(II) interest deductions properly allocable to such gross income,

(D) the capital gain net income (as defined in section 1222) of the taxpayer for such taxable year, and

(E) the excess (if any) of—

(i) the aggregate income from all passive activities for the taxable year (determined without regard to any amount included in earned income under subsection (c)(2) or described in a preceding subparagraph), over

(ii) the aggregate losses from all passive activities for the taxable year (as so determined).

For purposes of subparagraph (E), the term “passive activity” has the meaning given such term by section 469.

(j) Inflation adjustments

(1) In generalIn the case of any taxable year beginning after 2015 (2021 in the case of the dollar amount in subsection (i)(1)), each of the dollar amounts in subsections (b)(2) and (i)(1) shall be increased by an amount equal to—

(A) such dollar amount, multiplied by

(B) the cost-of-living adjustment determined under section 1(f)(3) for the calendar year in which the taxable year begins, determined by substituting in subparagraph (A)(ii) thereof—

(i) in the case of amounts in subsection (b)(2)(A), “calendar year 1995” for “calendar year 2016”,

(ii) in the case of the $5,000 amount in subsection (b)(2)(B), “calendar year 2008” for “calendar year 2016”, and

(iii) in the case of the $10,000 amount in subsection (i)(1), “calendar year 2020” for “calendar year 2016”.

(2) Rounding

(A) In general

(B) Disqualified income threshold amount

(k) Restrictions on taxpayers who improperly claimed credit in prior year

(1) Taxpayers making prior fraudulent or reckless claims

(A) In general

(B) Disallowance periodFor purposes of paragraph (1), the disallowance period is—

(i) the period of 10 taxable years after the most recent taxable year for which there was a final determination that the taxpayer’s claim of credit under this section was due to fraud, and

(ii) the period of 2 taxable years after the most recent taxable year for which there was a final determination that the taxpayer’s claim of credit under this section was due to reckless or intentional disregard of rules and regulations (but not due to fraud).

(2) Taxpayers making improper prior claims

(l) Coordination with certain means-tested programsFor purposes of—

(1) the United States Housing Act of 1937,

(2) title V of the Housing Act of 1949,

(3) section 101 of the Housing and Urban Development Act of 1965,

(4) sections 221(d)(3), 235, and 236 of the National Housing Act, and

(5) the Food and Nutrition Act of 2008,

any refund made to an individual (or the spouse of an individual) by reason of this section shall not be treated as income (and shall not be taken into account in determining resources for the month of its receipt and the following month).

(m) Identification numbers

(n) Special rules for individuals without qualifying childrenIn the case of any taxable year beginning after December 31, 2020, and before January 1, 2022—

(1) Decrease in minimum age for credit

(A) In general

(B) Applicable minimum ageFor purposes of this paragraph, the term “applicable minimum age” means—

(i) except as otherwise provided in this subparagraph, age 19,

(ii) in the case of a specified student (other than a qualified former foster youth or a qualified homeless youth), age 24, and

(iii) in the case of a qualified former foster youth or a qualified homeless youth, age 18.

(D) Qualified former foster youthFor purposes of this paragraph, the term “qualified former foster youth” means an individual who—

(i) on or after the date that such individual attained age 14, was in foster care provided under the supervision or administration of an entity administering (or eligible to administer) a plan under part B or part E of title IV of the Social Security Act (without regard to whether Federal assistance was provided with respect to such child under such part E), and

(ii) provides (in such manner as the Secretary may provide) consent for entities which administer a plan under part B or part E of title IV of the Social Security Act to disclose to the Secretary information related to the status of such individual as a qualified former foster youth.

(E) Qualified homeless youth

(2) Elimination of maximum age for credit

(3) Increase in credit and phaseout percentages

(4) Increase in earned income and phaseout amounts

(A) In generalThe table contained in subsection (b)(2)(A) shall be applied—

(i) by substituting “$9,820” for “$4,220”, and

(ii) by substituting “$11,610” for “$5,280”.

(B) Coordination with inflation adjustment

(Added Pub. L. 94–12, title II, § 204(a), Mar. 29, 1975, 89 Stat. 30, § 43; amended Pub. L. 94–164, § 2(c), Dec. 23, 1975, 89 Stat. 971; Pub. L. 94–455, title IV, § 401(c)(1)(B), (2), Oct. 4, 1976, 90 Stat. 1557; Pub. L. 95–600, title I, §§ 104(a)–(e), 105(a), Nov. 6, 1978, 92 Stat. 2772, 2773; Pub. L. 95–615, § 202(g)(5), formerly § 202(f)(5), Nov. 8, 1978, 92 Stat. 3100, renumbered § 202(g)(5) and amended Pub. L. 96–222, title I, §§ 101(a)(1), (2)(E), 108(a)(1)(A), Apr. 1, 1980, 94 Stat. 194, 195, 223; Pub. L. 97–34, title I, §§ 111(b)(2), 112(b)(3), Aug. 13, 1981, 95 Stat. 194, 195; Pub. L. 98–21, title I, § 124(c)(4)(B), Apr. 20, 1983, 97 Stat. 91; renumbered § 32 and amended Pub. L. 98–369, div. A, title IV, §§ 423(c)(3), 471(c), title X, § 1042(a)–(d)(2), July 18, 1984, 98 Stat. 801, 826, 1043; Pub. L. 99–514, title I, §§ 104(b)(1)(B), 111(a)–(d)(1), title XII, § 1272(d)(4), title XIII, § 1301(j)(8), Oct. 22, 1986, 100 Stat. 2104, 2107, 2594, 2658; Pub. L. 100–647, title I, §§ 1001(c), 1007(g)(12), Nov. 10, 1988, 102 Stat. 3350, 3436; Pub. L. 101–508, title XI, §§ 11101(d)(1)(B), 11111(a), (b), (e), Nov. 5, 1990, 104 Stat. 1388–405, 1388–408, 1388–412, 1388–413; Pub. L. 103–66, title XIII, § 13131(a)–(d)(1), Aug. 10, 1993, 107 Stat. 433–435; Pub. L. 103–465, title VII, §§ 721(a), 722(a), 723(a), 742(a), Dec. 8, 1994, 108 Stat. 5002, 5003, 5010; Pub. L. 104–7, § 4(a), Apr. 11, 1995, 109 Stat. 95; Pub. L. 104–193, title IV, § 451(a), (b), title IX, §§ 909(a), (b), 910(a), (b), Aug. 22, 1996, 110 Stat. 2276, 2277, 2351, 2352; Pub. L. 105–34, title I, § 101(b), title III, § 312(d)(2), title X, § 1085(a)(1), (b)–(d), Aug. 5, 1997, 111 Stat. 798, 840, 955, 956; Pub. L. 105–206, title VI, §§ 6003(b), 6010(p)(1), (2), 6021(a), (b), July 22, 1998, 112 Stat. 791, 816, 817, 823, 824; Pub. L. 106–170, title IV, § 412(a), Dec. 17, 1999, 113 Stat. 1917; Pub. L. 107–16, title II, § 201(c)(3), title III, § 303(a)–(f), (h), June 7, 2001, 115 Stat. 47, 55–57; Pub. L. 107–147, title IV, § 416(a)(1), Mar. 9, 2002, 116 Stat. 55; Pub. L. 108–311, title I, § 104(b), title II, § 205, Oct. 4, 2004, 118 Stat. 1169, 1176; Pub. L. 109–135, title III, § 302(a), Dec. 21, 2005, 119 Stat. 2608; Pub. L. 109–432, div. A, title I, § 106(a), Dec. 20, 2006, 120 Stat. 2938; Pub. L. 110–234, title IV, § 4002(b)(1)(B), (2)(O), May 22, 2008, 122 Stat. 1096, 1097; Pub. L. 110–245, title I, § 102(a), June 17, 2008, 122 Stat. 1625; Pub. L. 110–246, § 4(a), title IV, § 4002(b)(1)(B), (2)(O), June 18, 2008, 122 Stat. 1664, 1857, 1858; Pub. L. 111–5, div. B, title I, § 1002(a), Feb. 17, 2009, 123 Stat. 312; Pub. L. 111–226, title II, § 219(a)(2), Aug. 10, 2010, 124 Stat. 2403; Pub. L. 111–312, title I, § 103(c), Dec. 17, 2010, 124 Stat. 3299; Pub. L. 112–240, title I, § 103(c), Jan. 2, 2013, 126 Stat. 2319; Pub. L. 113–295, div. A, title II, §§ 206(a), 221(a)(3), Dec. 19, 2014, 128 Stat. 4027, 4037; Pub. L. 114–113, div. Q, title I, § 103(a)–(c), title II, § 204(a), Dec. 18, 2015, 129 Stat. 3044, 3045, 3081; Pub. L. 115–97, title I, § 11002(d)(1)(D), Dec. 22, 2017, 131 Stat. 2060; Pub. L. 115–141, div. U, title I, § 101(a), title IV, § 401(b)(4), Mar. 23, 2018, 132 Stat. 1160, 1201; Pub. L. 117–2, title IX, §§ 9621(a), 9622(a), 9623(a), (b), 9624(a), (b), Mar. 11, 2021, 135 Stat. 152–154.)

§ 33. Tax withheld at source on nonresident aliens and foreign corporations

There shall be allowed as a credit against the tax imposed by this subtitle the amount of tax withheld at source under subchapter A of chapter 3 (relating to withholding of tax on nonresident aliens and on foreign corporations).

(Aug. 16, 1954, ch. 736, 68A Stat. 13, § 32; renumbered § 33 and amended Pub. L. 98–369, div. A, title IV, §§ 471(c), 474(j), July 18, 1984, 98 Stat. 826, 832.)

§ 34. Certain uses of gasoline and special fuels

(a) General rule

There shall be allowed as a credit against the tax imposed by this subtitle for the taxable year an amount equal to the sum of the amounts payable to the taxpayer—

(1) under section 6420 (determined without regard to section 6420(g)),

(2) under section 6421 (determined without regard to section 6421(i)), and

(3) under section 6427 (determined without regard to section 6427(k)).

(b) Exception

(Added Pub. L. 89–44, title VIII, 809(c), June 21, 1965, 79 Stat. 167, § 39; amended Pub. L. 91–258, title II, § 207(c), May 21, 1970, 84 Stat. 248; Pub. L. 94–455, title XIX, §§ 1901(a)(3), 1906(b)(8), (9), Oct. 4, 1976, 90 Stat. 1764, 1834; Pub. L. 94–530, § 1(c)(1), Oct. 17, 1976, 90 Stat. 2487; Pub. L. 95–599, title V, § 505(c)(1), Nov. 6, 1978, 92 Stat. 2760; Pub. L. 95–618, title II, § 233(b)(2)(C), Nov. 9, 1978, 92 Stat. 3191; Pub. L. 96–223, title II, § 232(d)(4)(A), Apr. 2, 1980, 94 Stat. 278; Pub. L. 97–424, title V, § 515(b)(6)(A)–(C), Jan. 6, 1983, 96 Stat. 2181; renumbered § 34 and amended Pub. L. 98–369, div. A, title IV, § 471(c), title IX, § 911(d)(2)(A), July 18, 1984, 98 Stat. 826, 1006; Pub. L. 99–514, title XVII, § 1703(e)(2)(F), title XVIII, § 1877(a), Oct. 22, 1986, 100 Stat. 2778, 2902; Pub. L. 100–647, title I, § 1017(c)(2), Nov. 10, 1988, 102 Stat. 3576; Pub. L. 104–188, title I, § 1606(b)(1), Aug. 20, 1996, 110 Stat. 1839; Pub. L. 105–206, title VI, § 6023(24)(B), July 22, 1998, 112 Stat. 826; Pub. L. 110–172, § 11(a)(4), Dec. 29, 2007, 121 Stat. 2484.)

§ 35. Health insurance costs of eligible individuals

(a) In general

(b) Eligible coverage monthFor purposes of this section—

(1) In generalThe term “eligible coverage month” means any month if—

(A) as of the first day of such month, the taxpayer—

(i) is an eligible individual,

(ii) is covered by qualified health insurance, the premium for which is paid by the taxpayer,

(iii) does not have other specified coverage, and

(iv) is not imprisoned under Federal, State, or local authority, and

(B) such month begins more than 90 days after the date of the enactment of the Trade Act of 2002, and before January 1, 2022.

(2) Joint returns

(1) In generalThe term “eligible individual” means—

(A) an eligible TAA recipient,

(B) an eligible alternative TAA recipient, and

(2) Eligible TAA recipient

(A) In general

(B) Special ruleIn the case of any eligible coverage month beginning after the date of the enactment of this paragraph, the term “eligible TAA recipient” means, with respect to any month, any individual who—

(i) is receiving for any day of such month a trade readjustment allowance under chapter 2 of title II of the Trade Act of 1974,

(ii) would be eligible to receive such allowance except that such individual is in a break in training provided under a training program approved under section 236 of such Act that exceeds the period specified in section 233(e) of such Act, but is within the period for receiving such allowances provided under section 233(a) of such Act, or

(iii) is receiving unemployment compensation (as defined in section 85(b)) for any day of such month and who would be eligible to receive such allowance for such month if section 231 of such Act were applied without regard to subsections (a)(3)(B) and (a)(5) thereof.

An individual shall continue to be treated as an eligible TAA recipient during the first month that such individual would otherwise cease to be an eligible TAA recipient by reason of the preceding sentence.

(3) Eligible alternative TAA recipientThe term “eligible alternative TAA recipient” means, with respect to any month, any individual who—

(A) is a worker described in section 246(a)(3)(B) of the Trade Act of 1974 who is participating in the program established under section 246(a)(1) of such Act, and

(B) is receiving a benefit for such month under section 246(a)(2) of such Act.

An individual shall continue to be treated as an eligible alternative TAA recipient during the first month that such individual would otherwise cease to be an eligible alternative TAA recipient by reason of the preceding sentence.

(4) Eligible PBGC pension recipientThe term “eligible PBGC pension recipient” means, with respect to any month, any individual who—

(A) has attained age 55 as of the first day of such month, and

(B) is receiving a benefit for such month any portion of which is paid by the Pension Benefit Guaranty Corporation under title IV of the Employee Retirement Income Security Act of 1974.

(d) Qualifying family memberFor purposes of this section—

(1) In generalThe term “qualifying family member” means—

(A) the taxpayer’s spouse, and

(B) any dependent of the taxpayer with respect to whom the taxpayer is entitled to a deduction under section 151(c).

Such term does not include any individual who has other specified coverage.

(2) Special dependency test in case of divorced parents, etc.

(e) Qualified health insuranceFor purposes of this section—

(1) In generalThe term “qualified health insurance” means any of the following:

(A) Coverage under a COBRA continuation provision (as defined in section 9832(d)(1)).

(B) State-based continuation coverage provided by the State under a State law that requires such coverage.

(C) Coverage offered through a qualified State high risk pool (as defined in section 2744(c)(2) of the Public Health Service Act).

(D) Coverage under a health insurance program offered for State employees.

(E) Coverage under a State-based health insurance program that is comparable to the health insurance program offered for State employees.

(F) Coverage through an arrangement entered into by a State and—

(i) a group health plan (including such a plan which is a multiemployer plan as defined in section 3(37) of the Employee Retirement Income Security Act of 1974),

(ii) an issuer of health insurance coverage,

(iii) an administrator, or

(iv) an employer.

(G) Coverage offered through a State arrangement with a private sector health care coverage purchasing pool.

(H) Coverage under a State-operated health plan that does not receive any Federal financial participation.

(I) Coverage under a group health plan that is available through the employment of the eligible individual’s spouse.

(J) In the case of any eligible individual and such individual’s qualifying family members, coverage under individual health insurance (other than coverage enrolled in through an Exchange established under the Patient Protection and Affordable Care Act). For purposes of this subparagraph, the term “individual health insurance” means any insurance which constitutes medical care offered to individuals other than in connection with a group health plan and does not include Federal- or State-based health insurance coverage.

(K) Coverage under an employee benefit plan funded by a voluntary employees’ beneficiary association (as defined in section 501(c)(9)) established pursuant to an order of a bankruptcy court, or by agreement with an authorized representative, as provided in section 1114 of title 11, United States Code.

(2) Requirements for state-based coverage

(A) In generalThe term “qualified health insurance” does not include any coverage described in subparagraphs (B) through (H) of paragraph (1) unless the State involved has elected to have such coverage treated as qualified health insurance under this section and such coverage meets the following requirements:

(i) Guaranteed issue

(ii) No imposition of preexisting condition exclusion

(iii) Nondiscriminatory premium

(iv) Same benefits

(B) Qualifying individualFor purposes of this paragraph, the term “qualifying individual” means—

(i) an eligible individual for whom, as of the date on which the individual seeks to enroll in the coverage described in subparagraphs (B) through (H) of paragraph (1), the aggregate of the periods of creditable coverage (as defined in section 9801(c)) is 3 months or longer and who, with respect to any month, meets the requirements of clauses (iii) and (iv) of subsection (b)(1)(A); and

(ii) the qualifying family members of such eligible individual.

(3) ExceptionThe term “qualified health insurance” shall not include—

(A) a flexible spending or similar arrangement, and

(B) any insurance if substantially all of its coverage is of excepted benefits described in section 9832(c).

(f) Other specified coverageFor purposes of this section, an individual has other specified coverage for any month if, as of the first day of such month—

(1) Subsidized coverage

(A) In general

(B) Eligible alternative TAA recipientsIn the case of an eligible alternative TAA recipient, such individual is either—

(i) eligible for coverage under any qualified health insurance (other than insurance described in subparagraph (A), (B), or (F) of subsection (e)(1)) under which at least 50 percent of the cost of coverage (determined under section 4980B(f)(4)) is paid or incurred by an employer (or former employer) of the taxpayer or the taxpayer’s spouse, or

(ii) covered under any such qualified health insurance under which any portion of the cost of coverage (as so determined) is paid or incurred by an employer (or former employer) of the taxpayer or the taxpayer’s spouse.

(2) Coverage under Medicare, Medicaid, or SCHIPSuch individual—

(A) is entitled to benefits under part A of title XVIII of the Social Security Act or is enrolled under part B of such title, or

(B) is enrolled in the program under title XIX or XXI of such Act (other than under section 1928 of such Act).

(3) Certain other coverageSuch individual—

(A) is enrolled in a health benefits plan under chapter 89 of title 5, United States Code, or

(B) is entitled to receive benefits under chapter 55 of title 10, United States Code.

(g) Special rules

(1) Coordination with advance payments of credit

(2) Coordination with other deductions

(3) Medical and health savings accounts

(4) Denial of credit to dependents

(5) Both spouses eligible individualsThe spouse of the taxpayer shall not be treated as a qualifying family member for purposes of subsection (a), if—

(A) the taxpayer is married at the close of the taxable year,

(B) the taxpayer and the taxpayer’s spouse are both eligible individuals during the taxable year, and

(6) Marital status; certain married individuals living apart

(7) Insurance which covers other individuals

(8) Treatment of paymentsFor purposes of this section—

(A) Payments by Secretary

(B) Payments by taxpayer

(9) Continuation coverage premium assistance

(10) Continued qualification of family members after certain events

(A) Medicare eligibility

(B) Divorce

(i) any spouse of such individual (determined at the time of such death) shall be treated as an eligible individual for purposes of this section and section 7527 for a period of 24 months beginning with the date of such death, except that the only qualifying family members who may be taken into account with respect to such spouse are those individuals who were qualifying family members immediately before such death, and

(ii) any individual who was a qualifying family member of the decedent immediately before such death (or, in the case of an individual to whom paragraph (4) applies, the taxpayer to whom the deduction under section 151 is allowable) shall be treated as an eligible individual for purposes of this section and section 7527 for a period of 24 months beginning with the date of such death, except that in determining the amount of such credit only such qualifying family member may be taken into account.

(11) Election

(A) In general

(B) Timing and applicability of electionExcept as the Secretary may provide—

(i) an election to have this section apply for any eligible coverage month in a taxable year shall be made not later than the due date (including extensions) for the return of tax for the taxable year; and

(ii) any election for this section to apply for an eligible coverage month shall apply for all subsequent eligible coverage months in the taxable year and, once made, shall be irrevocable with respect to such months.

(12) Coordination with premium tax credit

(A) In general

(B) Coordination with advance payments of premium tax creditIn the case of a taxpayer who makes the election under paragraph (11) with respect to any eligible coverage month in a taxable year or on behalf of whom any advance payment is made under section 7527 with respect to any month in such taxable year—

(i) the tax imposed by this chapter for the taxable year shall be increased by the excess, if any, of—(I) the sum of any advance payments made on behalf of the taxpayer under section 1412 of the Patient Protection and Affordable Care Act and section 7527 for months during such taxable year, over(II) the sum of the credits allowed under this section (determined without regard to paragraph (1)) and section 36B (determined without regard to subsection (f)(1) thereof) for such taxable year; and

(ii) section 36B(f)(2) shall not apply with respect to such taxpayer for such taxable year, except that if such taxpayer received any advance payments under section 7527 for any month in such taxable year and is later allowed a credit under section 36B for such taxable year, then section 36B(f)(2)(B) shall be applied by substituting the amount determined under clause (i) for the amount determined under section 36B(f)(2)(A).

(13) Regulations

(Added Pub. L. 107–210, div. A, title II, § 201(a), Aug. 6, 2002, 116 Stat. 954; amended Pub. L. 108–311, title IV, § 401(a)(2), Oct. 4, 2004, 118 Stat. 1183; Pub. L. 110–172, § 11(a)(5), Dec. 29, 2007, 121 Stat. 2485; Pub. L. 111–5, div. B, title I, §§ 1899A(a)(1), 1899C(a), 1899E(a), 1899G(a), title III, § 3001(a)(14)(A), Feb. 17, 2009, 123 Stat. 423, 424, 426, 430, 465; Pub. L. 111–144, § 3(b)(5)(A), Mar. 2, 2010, 124 Stat. 44; Pub. L. 111–344, title I, §§ 111(a), 113(a), 115(a), 117(a), Dec. 29, 2010, 124 Stat. 3614–3616; Pub. L. 112–40, title II, § 241(a), (b)(1), (3)(A)–(C), Oct. 21, 2011, 125 Stat. 418, 419; Pub. L. 113–295, div. A, title II, § 209(j)(3), Dec. 19, 2014, 128 Stat. 4031; Pub. L. 114–27, title IV, § 407(a), (b), (d), June 29, 2015, 129 Stat. 381, 382; Pub. L. 116–94, div. Q, title I, § 146(a), Dec. 20, 2019, 133 Stat. 3236; Pub. L. 116–260, div. EE, title I, § 134(a), Dec. 27, 2020, 134 Stat. 3053; Pub. L. 117–2, title IX, § 9501(b)(3)(A), Mar. 11, 2021, 135 Stat. 137.)

§ 36. First-time homebuyer credit

(a) Allowance of credit

(b) Limitations

(1) Dollar limitation

(A) In general

(B) Married individuals filing separately

(D) Special rule for long-time residents of same principal residence

(2) Limitation based on modified adjusted gross income

(A) In generalThe amount allowable as a credit under subsection (a) (determined without regard to this paragraph) for the taxable year shall be reduced (but not below zero) by the amount which bears the same ratio to the amount which is so allowable as—

(i) the excess (if any) of—(I) the taxpayer’s modified adjusted gross income for such taxable year, over(II) $125,000 ($225,000 in the case of a joint return), bears to

(ii) $20,000.

(B) Modified adjusted gross income

(3) Limitation based on purchase price

(4) Age limitation

(1) First-time homebuyer

(2) Principal residence

(3) Purchase

(A) In generalThe term “purchase” means any acquisition, but only if—

(i) the property is not acquired from a person related to the person acquiring such property (or, if married, such individual’s spouse), and

(ii) the basis of the property in the hands of the person acquiring such property is not determined—(I) in whole or in part by reference to the adjusted basis of such property in the hands of the person from whom acquired, or(II) under section 1014(a) (relating to property acquired from a decedent).

(B) Construction

(4) Purchase price

(5) Related persons

(6) Exception for long-time residents of same principal residence

(d) ExceptionsNo credit under subsection (a) shall be allowed to any taxpayer for any taxable year with respect to the purchase of a residence if—

(1) the taxpayer is a nonresident alien,

(2) the taxpayer disposes of such residence (or such residence ceases to be the principal residence of the taxpayer (and, if married, the taxpayer’s spouse)) before the close of such taxable year,

(3) a deduction under section 151 with respect to such taxpayer is allowable to another taxpayer for such taxable year, or

(4) the taxpayer fails to attach to the return of tax for such taxable year a properly executed copy of the settlement statement used to complete such purchase.

(e) Reporting

(f) Recapture of credit

(1) In general

(2) Acceleration of recaptureIf a taxpayer disposes of the principal residence with respect to which a credit was allowed under subsection (a) (or such residence ceases to be the principal residence of the taxpayer (and, if married, the taxpayer’s spouse)) before the end of the recapture period—

(A) the tax imposed by this chapter for the taxable year of such disposition or cessation shall be increased by the excess of the amount of the credit allowed over the amounts of tax imposed by paragraph (1) for preceding taxable years, and

(B) paragraph (1) shall not apply with respect to such credit for such taxable year or any subsequent taxable year.

(3) Limitation based on gain

(4) Exceptions

(A) Death of taxpayer

(B) Involuntary conversion

(C) Transfers between spouses or incident to divorceIn the case of a transfer of a residence to which section 1041(a) applies—

(i) paragraph (2) shall not apply to such transfer, and

(ii) in the case of taxable years ending after such transfer, paragraphs (1) and (2) shall apply to the transferee in the same manner as if such transferee were the transferor (and shall not apply to the transferor).

(D) Waiver of recapture for purchases in 2009 and 2010In the case of any credit allowed with respect to the purchase of a principal residence after December 31, 2008—

(i) paragraph (1) shall not apply, and

(ii) paragraph (2) shall apply only if the disposition or cessation described in paragraph (2) with respect to such residence occurs during the 36-month period beginning on the date of the purchase of such residence by the taxpayer.

(E) Special rule for members of the armed forces, etc.

(i) In generalIn the case of the disposition of a principal residence by an individual (or a cessation referred to in paragraph (2)) after December 31, 2008, in connection with Government orders received by such individual, or such individual’s spouse, for qualified official extended duty service—(I) paragraph (2) and subsection (d)(2) shall not apply to such disposition (or cessation), and(II) if such residence was acquired before January 1, 2009, paragraph (1) shall not apply to the taxable year in which such disposition (or cessation) occurs or any subsequent taxable year.

(ii) Qualified official extended duty serviceFor purposes of this section, the term “qualified official extended duty service” means service on qualified official extended duty as—(I) a member of the uniformed services,(II) a member of the Foreign Service of the United States, or(III) an employee of the intelligence community.

(iii) Definitions

(5) Joint returns

(6) Return requirement

(7) Recapture period

(g) Election to treat purchase in prior year

(h) Application of section

(1) In general

(2) Exception in case of binding contract

(3) Special rule for individuals on qualified official extended duty outside the United StatesIn the case of any individual who serves on qualified official extended duty service (as defined in section 121(d)(9)(C)(i)) outside the United States for at least 90 days during the period beginning after December 31, 2008, and ending before May 1, 2010, and, if married, such individual’s spouse—

(A) paragraphs (1) and (2) shall each be applied by substituting “May 1, 2011” for “May 1, 2010”, and

(B) paragraph (2) shall be applied by substituting “July 1, 2011” for “July 1, 2010”, and for “October 1, 2010”.

(Added Pub. L. 110–289, div. C, title I, § 3011(a), July 30, 2008, 122 Stat. 2888; amended Pub. L. 111–5, div. B, title I, § 1006(a)–(c), (d)(2), (e), Feb. 17, 2009, 123 Stat. 316, 317; Pub. L. 111–92, §§ 11(a)–(g), 12(a)–(c), Nov. 6, 2009, 123 Stat. 2989–2992; Pub. L. 111–198, § 2(a), (b), July 2, 2010, 124 Stat. 1356.)

[§ 36A. Repealed. Pub. L. 113–295, div. A, title II, § 221(a)(5)(A), Dec. 19, 2014, 128 Stat. 4037]

§ 36B. Refundable credit for coverage under a qualified health plan

(a) In general

(b) Premium assistance credit amountFor purposes of this section—

(1) In general

(2) Premium assistance amountThe premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of—

(A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 1

1 So in original. Probably should be preceded by “section”.

of the Patient Protection and Affordable Care Act, or

(B) the excess (if any) of—

(i) the adjusted monthly premium for such month for the applicable second lowest cost silver plan with respect to the taxpayer, over

(ii) an amount equal to 1/12 of the product of the applicable percentage and the taxpayer’s household income for the taxable year.

(3) Other terms and rules relating to premium assistance amountsFor purposes of paragraph (2)—

(A) Applicable percentage

(i) In general

(ii) Indexing(I) In general(II) Additional adjustment(III) Failsafe

(iii) Temporary percentages for 2021 through 2025In the case of a taxable year beginning after December 31, 2020, and before January 1, 2026—(I) clause (ii) shall not apply for purposes of adjusting premium percentages under this subparagraph, and(II) the following table shall be applied in lieu of the table contained in clause (i):

In the case of household income (expressed as a percent of poverty line) within the following income tier:	The initial premium percentage is—	The final premium percentage is—
Up to 150.0 percent	0.0	0.0
150.0 percent up to 200.0 percent	0.0	2.0
200.0 percent up to 250.0 percent	2.0	4.0
250.0 percent up to 300.0 percent	4.0	6.0
300.0 percent up to 400.0 percent	6.0	8.5
400.0 percent and higher	8.5	8.5

(B) Applicable second lowest cost silver planThe applicable second lowest cost silver plan with respect to any applicable taxpayer is the second lowest cost silver plan of the individual market in the rating area in which the taxpayer resides which—

(i) is offered through the same Exchange through which the qualified health plans taken into account under paragraph (2)(A) were offered, and

(ii) provides—(I) self-only coverage in the case of an applicable taxpayer—(aa) whose tax for the taxable year is determined under section 1(c) 2

2 See References in Text note below.

(relating to unmarried individuals other than surviving spouses and heads of households) and who is not allowed a deduction under section 151 for the taxable year with respect to a dependent, or(bb) who is not described in item (aa) but who purchases only self-only coverage, and(II) family coverage in the case of any other applicable taxpayer.

If a taxpayer files a joint return and no credit is allowed under this section with respect to 1 of the spouses by reason of subsection (e), the taxpayer shall be treated as described in clause (ii)(I) unless a deduction is allowed under section 151 for the taxable year with respect to a dependent other than either spouse and subsection (e) does not apply to the dependent.

(D) Additional benefitsIf—

(i) a qualified health plan under section 1302(b)(5) of the Patient Protection and Affordable Care Act offers benefits in addition to the essential health benefits required to be provided by the plan, or

(ii) a State requires a qualified health plan under section 1311(d)(3)(B) of such Act to cover benefits in addition to the essential health benefits required to be provided by the plan,

the portion of the premium for the plan properly allocable (under rules prescribed by the Secretary of Health and Human Services) to such additional benefits shall not be taken into account in determining either the monthly premium or the adjusted monthly premium under paragraph (2).

(E) Special rule for pediatric dental coverage

(c) Definition and rules relating to applicable taxpayers, coverage months, and qualified health planFor purposes of this section—

(1) Applicable taxpayer

(A) In general

(B) Special rule for certain individuals lawfully present in the United StatesIf—

(i) a taxpayer has a household income which is not greater than 100 percent of an amount equal to the poverty line for a family of the size involved, and

(ii) the taxpayer is an alien lawfully present in the United States, but is not eligible for the medicaid program under title XIX of the Social Security Act by reason of such alien status,

the taxpayer shall, for purposes of the credit under this section, be treated as an applicable taxpayer with a household income which is equal to 100 percent of the poverty line for a family of the size involved.

(D) Denial of credit to dependents

(E) Temporary rule for 2021 through 2025

(2) Coverage monthFor purposes of this subsection—

(A) In generalThe term “coverage month” means, with respect to an applicable taxpayer, any month if—

(i) as of the first day of such month the taxpayer, the taxpayer’s spouse, or any dependent of the taxpayer is covered by a qualified health plan described in subsection (b)(2)(A) that was enrolled in through an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act, and

(ii) the premium for coverage under such plan for such month is paid by the taxpayer (or through advance payment of the credit under subsection (a) under section 1412 of the Patient Protection and Affordable Care Act).

(B) Exception for minimum essential coverage

(i) In general

(ii) Minimum essential coverage

(i) Coverage must be affordableExcept as provided in clause (iii), an employee shall not be treated as eligible for minimum essential coverage if such coverage—(I) consists of an eligible employer-sponsored plan (as defined in section 5000A(f)(2)), and(II) the employee’s required contribution (within the meaning of section 5000A(e)(1)(B)) with respect to the plan exceeds 9.5 percent of the applicable taxpayer’s household income.

This clause shall also apply to an individual who is eligible to enroll in the plan by reason of a relationship the individual bears to the employee.

(ii) Coverage must provide minimum value

(iii) Employee or family must not be covered under employer plan

(iv) Indexing

(3) Definitions and other rules

(A) Qualified health plan

(B) Grandfathered health plan

(4) Special rules for qualified small employer health reimbursement arrangements

(A) In general

(B) Denial of double benefit

(C) Affordable coverageFor purposes of subparagraph (A), a qualified small employer health reimbursement arrangement shall be treated as constituting affordable coverage for a month if—

(i) the excess of—(I) the amount that would be paid by the employee as the premium for such month for self-only coverage under the second lowest cost silver plan offered in the relevant individual health insurance market, over(II)1⁄12 of the employee’s permitted benefit (as defined in section 9831(d)(3)(C)) under such arrangement, does not exceed—

(ii)1⁄12 of 9.5 percent of the employee’s household income.

(D) Qualified small employer health reimbursement arrangement

(E) Coverage for less than entire year

(F) Indexing

(d) Terms relating to income and familiesFor purposes of this section—

(1) Family size

(2) Household income

(A) Household incomeThe term “household income” means, with respect to any taxpayer, an amount equal to the sum of—

(i) the modified adjusted gross income of the taxpayer, plus

(ii) the aggregate modified adjusted gross incomes of all other individuals who—(I) were taken into account in determining the taxpayer’s family size under paragraph (1), and(II) were required to file a return of tax imposed by section 1 for the taxable year.

(B) Modified adjusted gross incomeThe term “modified adjusted gross income” means adjusted gross income increased by—

(i) any amount excluded from gross income under section 911,

(ii) any amount of interest received or accrued by the taxpayer during the taxable year which is exempt from tax, and

(iii) an amount equal to the portion of the taxpayer’s social security benefits (as defined in section 86(d)) which is not included in gross income under section 86 for the taxable year.

(3) Poverty line

(A) In general

(B) Poverty line used

(e) Rules for individuals not lawfully present

(1) In generalIf 1 or more individuals for whom a taxpayer is allowed a deduction under section 151 (relating to allowance of deduction for personal exemptions) for the taxable year (including the taxpayer or his spouse) are individuals who are not lawfully present—

(A) the aggregate amount of premiums otherwise taken into account under clauses (i) and (ii) of subsection (b)(2)(A) shall be reduced by the portion (if any) of such premiums which is attributable to such individuals, and

(B) for purposes of applying this section, the determination as to what percentage a taxpayer’s household income bears to the poverty level for a family of the size involved shall be made under one of the following methods:

(i) A method under which—(I) the taxpayer’s family size is determined by not taking such individuals into account, and(II) the taxpayer’s household income is equal to the product of the taxpayer’s household income (determined without regard to this subsection) and a fraction—(aa) the numerator of which is the poverty line for the taxpayer’s family size determined after application of subclause (I), and(bb) the denominator of which is the poverty line for the taxpayer’s family size determined without regard to subclause (I).

(ii) A comparable method reaching the same result as the method under clause (i).

(2) Lawfully present

(3) Secretarial authority

(f) Reconciliation of credit and advance credit

(1) In general

(2) Excess advance payments

(A) In general

(B) Limitation on increase

(i) In general

(ii) Indexing of amountIn the case of any calendar year beginning after 2014, each of the dollar amounts in the table contained under clause (i) shall be increased by an amount equal to—(I) such dollar amount, multiplied by(II) the cost-of-living adjustment determined under section 1(f)(3) for the calendar year, determined by substituting “calendar year 2013” for “calendar year 2016” in subparagraph (A)(ii) thereof.

If the amount of any increase under clause (i) is not a multiple of $50, such increase shall be rounded to the next lowest multiple of $50.

(iii) Temporary modification of limitation on increase

(3) Information requirementEach Exchange (or any person carrying out 1 or more responsibilities of an Exchange under section 1311(f)(3) or 1321(c) of the Patient Protection and Affordable Care Act) shall provide the following information to the Secretary and to the taxpayer with respect to any health plan provided through the Exchange:

(A) The level of coverage described in section 1302(d) of the Patient Protection and Affordable Care Act and the period such coverage was in effect.

(B) The total premium for the coverage without regard to the credit under this section or cost-sharing reductions under section 1402 of such Act.

(D) The name, address, and TIN of the primary insured and the name and TIN of each other individual obtaining coverage under the policy.

(E) Any information provided to the Exchange, including any change of circumstances, necessary to determine eligibility for, and the amount of, such credit.

(F) Information necessary to determine whether a taxpayer has received excess advance payments.

(g) Special rule for individuals who receive unemployment compensation during 2021

(1) In generalFor purposes of this section, in the case of a taxpayer who has received, or has been approved to receive, unemployment compensation for any week beginning during 2021, for the taxable year in which such week begins—

(A) such taxpayer shall be treated as an applicable taxpayer, and

(B) there shall not be taken into account any household income of the taxpayer in excess of 133 percent of the poverty line for a family of the size involved.

(2) Unemployment compensation

(3) Evidence of unemployment compensation

(4) Clarification of rules remaining applicable

(A) Joint return requirement

(B) Household income and affordabillity 3

3 So in original. Probably should be “affordability”.

(h) RegulationsThe Secretary shall prescribe such regulations as may be necessary to carry out the provisions of this section, including regulations which provide for—

(1) the coordination of the credit allowed under this section with the program for advance payment of the credit under section 1412 of the Patient Protection and Affordable Care Act, and

(2) the application of subsection (f) where the filing status of the taxpayer for a taxable year is different from such status used for determining the advance payment of the credit.

(Added and amended Pub. L. 111–148, title I, § 1401(a), title X, §§ 10105(a)–(c), 10108(h)(1), Mar. 23, 2010, 124 Stat. 213, 906, 914; Pub. L. 111–152, title I, §§ 1001(a), 1004(a)(1)(A), (2)(A), (c), Mar. 30, 2010, 124 Stat. 1030, 1034, 1035; Pub. L. 111–309, title II, § 208(a), (b), Dec. 15, 2010, 124 Stat. 3291, 3292; Pub. L. 112–9, § 4(a), Apr. 14, 2011, 125 Stat. 36; Pub. L. 112–10, div. B, title VIII, § 1858(b)(1), Apr. 15, 2011, 125 Stat. 168; Pub. L. 112–56, title IV, § 401(a), Nov. 21, 2011, 125 Stat. 734; Pub. L. 114–255, div. C, title XVIII, § 18001(a)(3), Dec. 13, 2016, 130 Stat. 1341; Pub. L. 115–97, title I, § 11002(d)(1)(E), Dec. 22, 2017, 131 Stat. 2060; Pub. L. 117–2, title IX, §§ 9661(a), (b), 9662(a), 9663(a), Mar. 11, 2021, 135 Stat. 182, 183; Pub. L. 117–169, title I, § 12001(a), (b), Aug. 16, 2022, 136 Stat. 1905.)

[§ 36C. Renumbered § 23]

§ 37. Overpayments of tax

For credit against the tax imposed by this subtitle for overpayments of tax, see section 6401.

(Aug. 16, 1954, ch. 736, 68A Stat. 16, § 38; renumbered § 39, Pub. L. 87–834, § 2(a), Oct. 16, 1962, 76 Stat. 962; renumbered § 40, Pub. L. 89–44, title VIII, § 809(c), June 21, 1965, 79 Stat. 167; renumbered § 42, Pub. L. 92–178, title VI, § 601(a), Dec. 10, 1971, 85 Stat. 553; renumbered § 43, Pub. L. 94–12, title II, § 203(a), Mar. 29, 1975, 89 Stat. 29; renumbered § 44, Pub. L. 94–12, title II, § 204(a), Mar. 29, 1975, 89 Stat. 30; renumbered § 45, Pub. L. 94–12, title II, § 208(a), Mar. 29, 1975, 89 Stat. 32; renumbered § 35, Pub. L. 98–369, div. A, title IV, § 471(c), July 18, 1984, 98 Stat. 826; renumbered § 36, Pub. L. 107–210, div. A, title II, § 201(a), Aug. 6, 2002, 116 Stat. 954; renumbered § 37, Pub. L. 110–289, div. C, title I, § 3011(a), July 30, 2008, 122 Stat. 2888.)