Executor may not elect innocent spouse relief on behalf of deceased spouse.

• Author: Fiore, Nicholas J.

Wand H were married and filed joint returns for Years 1 and 2. During Years 1 and 2, Wand H claimed deductions on joint returns relating to H's partnership interests. H died on Date 1 and W died on Date 2. The IRS made adjustments to the joint returns for Years 1 and 2. W's executor filed Form 8857, Request for Innocent Spouse Relief, electing relief under Sec. 6015(b) and (c). W'S executor signed the Form 8857 on her behalf, claiming that W did not participate in the preparation of the joint returns and that W was unaware of H's partnership interests. The claim also indicates that H invested in the partnerships pursuant to a financial planner's advice.

Analysis

Sec. 6015 provides relief from joint and several liability to individuals who file joint income tax returns. Sec. 6015(b) (innocent spouse relief) and Sec. 6015(c) (allocation of liability) offer relief to certain joint filers from liability that arises as a result of a deficiency. The individual seeking relief under Sec. 6015(b) or (c) must affirmatively elect relief under those sections. Sec. 6015 does not indicate whether the executor of a deceased spouse's estate may elect relief under Sec. 6015(b) or (c) on behalf of a deceased spouse. Although there is no indication in Sec. 6015 as to whether relief was intended for deceased individuals, other Code sections may be helpful in determining the meaning of Sec. 6015.

Sec. 6013 allows a husband and wife to elect to file a joint return. The filing of such a return leads to the joint and several liability from which spouses seek relief under Sec. 6015. Unlike Sec. 6015, Sec. 6013 specifically provides rules for the availability of the joint election to deceased spouses: (1) Sec. 6013(a)(3) provides that, generally, in the case of the death of one or both spouses, the joint return with respect to the decedent may be made only by his executor or administrator or, in some cases, by the surviving spouse; (2) Sec. 6013(c) provides that a husband and wife may file a joint return after the death of one of the spouses for the tax year in which the spouse died; (3) Sec. 6013 (d)(1)(B) provides that, if one of the spouses dies before the close of the tax year, the status as husband and wife is determined on the date of the spouse's death, and (4) Sec. 6013(f)(4) provides that an executor may revoke the joint election of a spouse missing in action. All references in Sec. 6013 as to the treatment of deceased spouses indicate that Congress...