Husband in jail

[Jan S]

My client's husband was in jail for 11 months in 2010 (Feb-Dec). He will get out in July 2012. He had no income in 2010. Can she file MFJ for 2010 and 2011? Support does not seem to be an issue for a spouse. The state is 100% responsible for his care.

The other option is HOH. The instructions state that she can file HOH and claim her husband's exemption if he is not being claimed as a dependent by another TAXPAYER. (page 3-13 of the Tax Book). The state would not be claiming him as a dependent.

[thomtax]

If they are still married, they can be MFJ. There are many families that because of work, family illness, etc, do not live together, but they are still married and can file MFJ.

LT

[Koss]

No support test

She can certainly file MFJ. There is no "support test" for a spouse.

Your client (the wife) is in the rare situation where she may be able to claim her spouse's exemption without filing MFJ. This is possible only when the other spouse has no income, is not filing a return, and, as you pointed out, cannot be claimed as a dependent by another taxpayer. And I agree that the state cannot claim him as a dependent.

This unusual and poorly-understood option is meant for cases where one spouse will not agree to file MFJ. It allows the other spouse to benefit from the exemption. When this happens, the filing status is usually MFS. To do this with HOH is even more unusual.

Two observations:

(1) The option to claim the spouse's exemption when filing a separate return is also explained in Publication 17, on page 24. The discussion begins in the middle of the page, under the heading "Your Spouse's Exemption." The first thing it says is: "Your spouse is never considered your dependent."

So if you choose this bizarre option, do not put the husband in the dependent field. A person can never claim their spouse as a dependent. You still have to put his name and SSN in the spouse field, as you would for an MFS return. To claim the exemption, you simply check the box on line 6b to claim the spouse's exemption.

(2) I'm not convinced that HOH would really hold up under a thorough review of the facts and circumstances. To file HOH, you have to take the position that they lived apart during the last six months of the year.

Yes, I know. He was in jail for the last eleven months of the year. But see Pub. 17, page 22, on the criteria for HOH:

Your spouse did not live in your home during the last six months of the year. Your spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances. [Emphasis added]

So he's gettin' out in July 2012, huh?

The IRS definition of a temporary absence is found on page 25 of Pub. 17:

It must be reasonable to assume that the absent person will return to the home after the temporary absence. You must continue to keep up the home during the absence.

Is she waiting for him?

Or has she filed for divorce?

Or has she not made up her mind?

Maybe she oughta wait until October to file the return. See what the "facts and circumstances" are then.

Hmmm??



BMK

[Jan S]

They are going to stay married. This was his wake up call.

I thought that this might be considered a temporary absence, but I couldn't find any reference to prison.

Filing MFJ won't be a problem for the husband. I just wanted to make sure that the IRS would be OK with it. The wife thought she read somewhere that she would not be able to file jointly.

Thanks for the input.