Amending Same Sex Returns

[Kram BergGold]

I amended this same sex couple's 2010 return to get a $9,000 refund by switching them from 2 Single returns to a Joint return. A thousand dollars or so of this refund came from utilizing $4,000 of charitable contributions that were not allowed on the taxpayer's 2010 return due to insufficient AGI and was carried forward to 2011. So now I have to amend 2011. Amending 2011 to MFJ is $200 better than doing 2 MFS returns. However, can I just amend 2011 and keep the taxpayer's filing status as single which would save $1,000 in tax over MFJ. I know you can choose to amend these single returns to MFJ or choose not to amend. My question is, if you are now amending a 2011 return for a person who was single by US government standards do you have to switch to MFS or MFJ or can you just leave it at Single.

[Nashville]

Married is Married

Depending on the state, married is married at such point as it is legal to be such. Even in states that don't allow same-sex marriage, IRS says they can drive to another state to get married and the IRS will honor their married tax return.

My belief is if they have the option to marry and do so, then they must abide by IRS rules for married couples, namely if they are married on December 31 and still living together, they may file MFJ or MFS. Period. They can't pick and choose every year between married and single.

The groups supporting same-sex marriage have been demonstrating out in the streets that the civil benefits of married people have not been available to them because of their persuasion. And one of these civil benefits is the right to enjoy low tax rates of filing married and joint. So in all fairness, allow them to follow the same tax law that any married couple faces.

As tax preparers, we know that the "low tax rates" of married/joint is an often misunderstood myth, and is only lower for one wage-earner in most cases.

Specifically with regard to the original post, if you have amended 2010 to file joint, then the returns for all intervening years with single status must be amended as well.

[DaveO]

I agree with Nashville. If you amend the 2011 return you are stuck with MFJ or MFS.

[Gary2]

I'm afraid I disagree with the preceding replies in the general sense, though they reach essentially the correct conclusion in this case. (Perhaps they were being specific to this case without saying so explicitly.)

The IRS requirement is that each year's return be consistent. As far as I know, they haven't issued any guidance on carry-forward items, other than the general consistency rule.

In most cases, each year is separate and independent. Having amended 2010 to MFJ, there is no general obligation to amend 2011 to a married status.

Furthermore, if you wanted to amend 2011 for some unrelated reason, keeping the return or returns as Single, that, too, is permitted. If, for example, you happened to discover that one of the contributions deducted on the 2011 return happened not to qualify as a charitable contribution, you could amend 2011 solely to remove the deduction while keeping Single status.

However, in this particular case, because an item carried forward to 2011 on the original returns has been yanked back into 2010 by the amendment, it's clear that you can't just leave 2011 alone (because that would leave a double deduction of the same item). It's also clear that amending to a married status would be a permitted option, and is the one I would recommend. But I'm not prepared to say that amending merely to remove a deduction while keeping the Single status is clearly prohibited, for the simple reason that one has the right to choose not to take a deduction unilaterally. Personally, I wouldn't do it that way, and I wouldn't sign a return that chose to do it that way, but I wouldn't fire the client for it.

[Kram BergGold]

Yes you Can

I asked a fellow tax prpearer if the return can be amended to fix the carryover without changing the marital status. He said that the IRS said you may. I checked out the instructions to Form 1040X and on page 5 in the middle of the right hand column it says, "you are not required to change your filing status on a prior return, even if you amend that return for another reason.
Wow!
I just save my client $1,000!

[Golden Rocket]

Dont see the same result

Mark, I read the instructions and don't come away with the same thing.

In your example, the instructions say you are not required to file an amended return for 2010 to change filing status, even if you are
otherwise required to do so for another reason. Instructions, however, do not address 2011, 12, 13 at all should the filing status change for 2010.
They only state you are not required to retroactively change filing status.

There might be enough ambiguity in the instructions to allow any interpretation. Having said this, I would probably save $1000 for my client same as you did. In baseball, there is a cliche which says "tie goes to the runner" if umpire cannot make a determination as to the timing of the ball and runner reaching base at the same time. We might adopt a similar cliche that says "tie goes to the client."