Can a Joint Return be filed?

[Kram BergGold]

Thanks

To all 3 respondents,
Thank you!

[taxea]

no. He has to file his return but it is too late for Mfj and she would have to agree anyway

[New York Enrolled Agent]

Wife filed her 2010 return, MFS. She had a large Schedule C loss and no other income (don't worry about the NOL). Her Husband never filed. He had $150k of income. Finally the IRS is all over him to file. If he files MFS he owes $12,000 plus interest (I can get the penalty waived through FTA). I have been told he can't amend her return to file MFJ. I just want to be sure this is correct.

Look at IRC section 6013(b)(2)

[S T]

From Pub 501

Joint Return After Separate Returns
You can change your filing status from a separate return to a joint return by filing an amended return using Form 1040X.

You generally can change to a joint return any time within 3 years from the due date of the separate return or returns. This doesn't include any extensions. A separate return includes a return filed by you or your spouse claiming married filing separately, single, or head of household filing status.

Separate Returns After Joint Return
Once you file a joint return, you can't choose to file separate returns for that year after the due date of the return.

Exception. A personal representative for a decedent can change from a joint return elected by the surviving spouse to a separate return for the decedent. The personal representative has 1 year from the due date (including extensions) of the return to make the change. See Pub. 559 for more information on filing income tax returns for a decedent.

Looks like the due date of the return will be your obstacle.

Sandy

[Kram BergGold]

Wife filed her 2010 return, MFS. She had a large Schedule C loss and no other income (don't worry about the NOL). Her Husband never filed. He had $150k of income. Finally the IRS is all over him to file. If he files MFS he owes $12,000 plus interest (I can get the penalty waived through FTA). I have been told he can't amend her return to file MFJ. I just want to be sure this is correct.