Tax Filing Status?Joint, Married Filing Separately, Head of Household

• Author: Brian C. Vertz and Mitchell E. Benson
• Pages: 207-252

TAX FILING STATUS

9-1

CHAPTER 9

TAX FILING STATUS

JOINT, MARRIED FILING SEPARATELY,

HEAD OF HOUSEHOLD

§9.1 TAX RATESFIVE TAX SCHEDULES

§9.1.1 Head of Household

§9.1.1.1 Stepparent Entitlement to Head of Household Status

§9.1.2 Legal Separation and Separate Maintenance

§9.1.2.1 Excerpts from I.R.C. §7703

§9.1.2.2 Decree of Separate Maintenance

§9.1.3 Separation Agreements

§9.1.4 Separated Parents With Children, Living Apart

§9.1.5 Judgment of Dissolution

§9.1.6 Qualif‌ied Widow(er) With Dependent Child

§9.1.7 Annulled Marriages

§9.2 ADVANTAGES OF FILING JOINTLY

§9.2.1 Refunds and Carry Forwards of Tax Overpayments

§9.2.1.1 Joint Returns

§9.2.1.2 Separate Returns, Previous Filing of Joint Return

§9.3 DISADVANTAGES OF FILING JOINTLY

§9.3.1 Medical Expenses

§9.3.2 Itemized Miscellaneous Deductions

§9.3.3 IRA Contributions

§9.3.4 Casualty Loss

§9.4 MARRIAGE PENALTY

§9.5 ALLOCATION OF INCOME AND DEDUCTIONS ON SEPARATE RETURN

§9.6 JOINT AND SEVERAL LIABILITY

§9.6.1 “Innocent Spouse” Status Does Not Relieve Liability Assessed by Divorce Court

§9.7 DEFICIENCY NOTICE

§9.7.1 Last Known Address

§9.7.2 Def‌iciency Notice Regarding Joint Return

TAX FILING STATUS

Divorce Taxation 9-2

§9.7A ADDRESS CHANGE

§9.7-A.1 Change of Address

§9.7-A.2 Form 8822

§9.8 ELECTION TO FILE JOINT RETURN

§9.8.1 Amending From Separate to Joint; Joint to Separate

§9.8.1.1 Joint Return After Filing Separate Return

§9.8.1.2 Separate Return After Filing Joint Return

§9.8.2 Extensions

§9.8.3 Estimated Tax Payments

§9.8.4 Estimated Tax Payments After Divorce

§9.8.5 Quarterlies - Effect of Agreement

§9.8.6 Same-Sex Couples

§9.9 NET OPERATING LOSSES AND EXCESS BUSINESS LOSSES

§9.10 OTHER CARRYFORWARDS

§9.10.1 Charitable Contribution Carry-Forward

§9.10.2 Investment Interest Expense Carry-Forward

§9.10.3 Capital Loss Carry-Forwards

§9.10.4 Section 163(j) Limitation on Business Interest

§9.11 COMPELLING SPOUSE TO SIGN JOINT RETURN

§9.11.1 Some Courts Require a Spouse to File a Joint Federal Income Tax Return

§9.11.2 Declining to Order an Unwilling Spouse to Sign a Joint Return

§9.11.2.1 The Federal Law Argument

§9.11.2.2 Federal Law is Pre-Emptive

§9.11.2.3 The Joint Return Election Differs From Other

Federal Tax Matters a State Court May Consider

§9.11.2.4 Federal Obligation to File Tax Returns and Report Income

§9.11.2.5 Compulsion of Contempt

§9.11.2.6 Would State Court Ordered Joint Return, Signed Under Threat of

Contempt, or Filed Without the Unwilling Spouse’s Signature,

Be Accepted by the IRS or the Tax Court as a Joint Return?

§9.11.2.7 Dividing Marital Liabilities Not the Same as Ordering Spouse to Incur New Debt

§9.11.2.8 State Court Should Not Order Unwilling Spouse to Sign Joint Return

§9.11.3 IRS Not Bound by Court Ordered Requirement of Joinder

§9.12 JOINT RETURNS: WHAT QUALIFIES?

§9.12.1 Signature of Both Spouses Not Required to Prove Intent to File Jointly

§9.12.2 Refusing to Sign as “Bargaining Chip” or “Ill Will”

§9.12.3 Fear Precludes Intent of Joint Return

§9.12.3.1 Facts Supporting Intent

§9.12.3.2 Facts Rebutting Intent

§9.12.4 Duress, Return Signed Under

§9.12.4.1 Def‌inition of Duress

§9.12.4.2 Finding of Duress

§9.12.4.3 Finding No Duress

§9.12.5 Forging Spouse’s Signature Precludes Joint Status

§9.12.6 E-Filed Returns

TAX FILING STATUS

9-3 Tax Filing Status—Joint, Married Filing Separately, Head of Household

§9.13 FILING SEPARATE RETURN PREVENTS SPOUSE FROM FILING JOINT

§9.13.1 Standard and Itemized Deductions for Married Persons Filing Separate Returns

§9.13.1.1 Introduction

§9.13.1.2 Election to Itemize Precludes Standard Deduction

§9.13.1.3 Relief by Divorce Court

§9.14 OBTAINING AN INDEMNIFICATION AND HOLD

HARMLESS AGREEMENT FOR SIGNING A JOINT RETURN

§9.14.1 Court Requiring Execution of Indemnif‌ication

§9.15 PRACTICE TIPS

§9.16 FORM OF INDEMNIFICATION AND HOLD HARMLESS AGREEMENT

§9.17 COURT IMPOSITION OF INCOME TAX LIABILITY

§9.17.1 Tax Liability on Alimony, Payor’s Agreement to Pay; Amount

§9.18 NONMARITAL ASSETEFFECT OF CONVERTING TO MARITAL BY FILING JOINT RETURN

§9.19 [RESERVED]

§9.20 ALIMONY AMOUNT NOT DETERMINED BY INCOME ON JOINT RETURN

§9.21 S CORPORATIONS, CAUTION AGAINST UNDISTRIBUTED TAXABLE INCOME

§9.21.1 S Corporation’s “Pass-Through Income,” Consideration

for Alimony, Child Support and Attorney’s Fees