Unsigned joint return was not valid; 10th Cir. reverses own decision and affirms Tax Court.

• Author: Fiore, Nicholas J.

After 15 years of marriage, H and W were divorced in 1996. After obtaining two extensions, they filed their 1995 return on Oct. 15, 1996. The return was not signed by either H or W, but included the signature of their paid preparer. (H and W did file joint state tax returns.) The IRS processed this return as a joint return and, in 1997, H paid the taxes due.

In 1997, W declared bankruptcy. The Service, during a review of her returns, informed W that she and H had failed to sign the 1995 return. At the IRS's suggestion, she signed and filed a separate 1995 return in 1998.

In 1998, the Service notified H that he had not filed a valid 1995 return. In two meetings with IRS agents, H asked to sign the original return to correct the problem, but was not allowed to do so (apparently because W had filed her separate 1995 return).

In 1998, the Service reversed its original processing of the 1995 return and, in 1999, issued a deficiency notice to H.

In a memorandum decision, the Tax Court held for the IRS. In January 2001, the Court of Appeals reversed, ruling that, given H's actions and his efforts, he intended to file a joint return for 1995. On the Service's petition for rehearing, the appellate court (opinion McKay, J.) withdrew its prior opinion, and affirmed the Tax Court.

Return Signature Requirements

The Internal Revenue Code states that "any return ... required to be made under any provision of the internal revenue laws or regulations shall be signed in accordance with forms or regulations prescribed by the Secretary." Sec. 6065 also requires that "except as otherwise provided by the Secretary, any return ... required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that it is made under the penalties of perjury."

The Code clearly states that, in order to be valid, a tax return must be signed. Additionally, Regs. Sec. 1.6013-1 (a) (2) provides that "[a] joint return of a husband and wife (if not made by an agent of one or both spouses) shall be signed by both spouses." The 1995 Form 1040 (the form filed by the H and W) states on its face, "If a joint return BOTH must sign." The Treasury has not created any applicable exception to Sec. 6065's verification requirement. Because H and W did not file electronically...