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TITLE 26-INTERNAL REVENUE CODE (2) Special rule for spouse who is a student or in- capable of caring for himself In the case of a spouse who is a student or a qualifying individual described in subsection (c)(1)(C), for purposes of paragraph (1), such spouse shall be deemed for each month during which such spouse is a full-time stu- dent at an educational institution, or is such a qualifying individual, to be gainfully em- ployed and to have earned income of not less than- (A) $166 if subsection (d)(1) applies for the taxable year, or (B) $333 if subsection (d)(2) applies for the taxable year. In the case of any husband and wife, this paragraph shall apply with respect to only one spouse for any one month. (f) Special rules For purposes of this section- (1) Maintaining household An individual shall be treated as maintain- ing a household for any period only if over half the cost of maintaining the household for such period is furnished by such individ- ual (or, if such individual is married during such period, is furnished by such individual and his spouse). (2) Married couples must file joint return If the taxpayer is married at the close of the taxable year, the credit shall be allowed under subsection (a) only if the taxpayer and his spouse file a joint return for the taxable year. (3) Marital status An individual legally separated from his spouse under a decree of divorce or of sepa- rate maintenance shall not be considered as married. (4) Certain mnaried individuals living apart If- (A) an individual who is married and who files a separate return- (i) maintains as his home a househc~d which constitutes for more than one-half of the taxable year the principal place of abode of a qualifying individual, and (ii) furnishes over half of the cost of maintaining such household during the taxable year, and (B) during the last 6 months of such tax- able year such individual's spouse is not a member of such household, such individual shall not be considered as married. (5) Special dependency test in case of divorced par- ents, etc. If- (A) a child (as defined in section 151(e)(3)) who is under the age of 15 or who is physically or mentally incapable of caring for himself receives over half of his support during the calendar year from his parents who are divorced or legally separated under a decree of divorce or separate maintenance or who are separated under a written sepa- ration agreement, and (B) such child is in the custody of one or both of his parents for more than one-half of the calendar year, in the case of any taxable year beginning in such calendar year such child shall be treated as being a qualifying individual described in subparagraph (A) or (B) of subsection (c)(1), as the case may be, with respect to that parent who has custody for a longer period during such calendar year than the other parent, and shall not be treated as being a qualifying individual with respect to such other parent. (6) Payments to related individuals (A) In general Except as provided in subparagraph (B), no credit shall be allowed under subsection (a) for any amount paid by the taxpayer to an individual bearing a relationship to the taxpayer described in paragraphs (1) through (8) of section 152(a) (relating to definition of dependent) or to a dependent described in paragraph (9) of such s. -tion. (B) Exception Subparagraph (A) shall not apply to any amount paid by the taxpayer to an individ- ual with respect to whom, for the taxable year of the taxpayer in which the service is performed, neither the taxpayer nor his spouse is entitled to a deduction under sec- tion 151(e) (relating to deduction for per- sonal exemptions for dependents), but only if the service with respect to which such amount is paid constitutes employment within the meaning of section 3121(b). (7) Student The term "student" means an individual who during each of 5 calendar months during the taxable year is a full-time student at an educational organization. (8) Educational organization The term "educational organization" means an educational organization described in sec- tion 170(b)(1)(A)(ii). (g) Regulations The Secretary shall prescribe such regula- tions as may be necessary to carry out the pur- poses of this section. (Added Pub. L. 94-455, title V, § 504(a)(1), Oct. 4, 1976, 90 Stat. 1563.) EFFECTIVE DATE Section applicable to taxable years beginning after Dec. 31, 1975, see section 508 of Pub. L. 94-455, set out as an Effective Date of 1976 Amendment note under section 3 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 56, 6096 of this title. § 45. 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, re- numbered § 39, Oct. 16, 1962, Pub. L. 87-834, § 2(a), 76 Stat. 962; renumbered § 40, June 21, 1965, Pub. L. 89-44, title VIII, § 809(c), 79 Stat. 167; renumbered § 42, Dec. 10, 1971, Pub. L. 92- Page 51