Joint return not valid where one spouse filed separate return.

• Author: Beavers, James A.
• Position: 2017 Tax Court memorandum decision in Moss v. Commissioner

The Tax Court held that a joint return with only one spouse's signature was not valid because, although the signing spouse claimed the nonsigning spouse was disabled and unable to file a return, the signing spouse did not meet the requirements to be the nonsigning spouse's duly authorized agent for purposes of the return, and the evidence showed the nonsigning spouse did not intend to file a joint return.

Background

Peter Moss, who in 2009 lived in Connecticut, timely filed a 2008 joint income tax return in April 2009. On the tax return, he claimed married-filing-jointly status, personal exemptions for himself and his wife, and an $823 overpayment from their previous year's joint income tax return. His wife, however, refused to sign the 2008 return. Moss nevertheless filed the return and attached to it a letter stating that his wife was seriously mentally ill, that the IRS should disregard all information she sent, and that the return included her income for 2008 as well as his. However, Moss did not attach any power of attorney that would authorize him to act on behalf of his wife, and Mrs. Moss never submitted to the IRS any consent for Mr. Moss to file the 2008 return for her.

Mrs. Moss filed a separate return in April 2009, apparently because she believed she was entitled to a theft loss deduction. Mr. Moss believed that his wife's mental illness, for which she had been hospitalized in 2005 and 2006, left her highly suggestible to news programs covering the "Madoff fraud" and led to the delusion that she had lost $350,000 in 2008 in that fraud.

In fact, she had no investments affected by the Madoff Ponzi scheme. When he filed the 2008 return, Mr. Moss believed he served a guardianship function for his wife because she was required to live with him as a condition of her hospital release in 2006. However, Mr. Moss had not sought official status as a conservator or guardian of his wife and had not procured a power of attorney from her. Only in August 2013 did a Connecticut probate court place Mrs. Moss into a conservatorship, appointing her daughters as conservators.

In her separately filed return, Mrs. Moss checked the "Married filing separately" box. Among other peculiarities, the return included a Form 4684, Casualties and Thefts, showing $350,000 in losses that Mrs. Moss reported on her Schedule A, Itemized Deductions, but she claimed only $9,000 in itemized deductions. The filing of a separate return was a significant departure for...