Third Question (more late filers)

[Black Bart]

T/P & current wife filing for expired year; she made $23K (1099) and owes lots of SE. He was in jail May-Dec; made $10K on W-2. Have 4 kids, but can't get EIC because of combined income. Yes, I know; you can see where this is heading; following shady practice of some clients and doing it themselves, they file HH & MFS and get the refund.
However, I'm doing it and want it to be legal. I looked up HH rules (Pub. 17, p.25-26) and it says he has to not live with her for last six months of year. Okay there, but here's the thorny part. Book also states "Your spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances. See Temporary absences." Okay, here's that quote. "TEMPORARY ABSENCES. You and your qualified person are considered to live together even if one or both of you are temporarily absent due to special circumstances such as illness, education, business, vacation, or military service. It must be reasonable to assume that the absent person will return to the home after the temporary absence."

My guy's absence is because of a socially undesirable reason and those reasons above are all positive ones (which we usally strive for, but not in this case). If the reason must be a positive one to be temporary, then he's not and they could get the HH status.

As to returning home, that would depend on several uncertain things such as length of sentence, good behavior and resulting early parole, etc. I guess you would probably say tht he was coming home sometime, so that part would be against us.

So, is he "temporarily" away from home or not? If yes, they're out of luck for HH status it
seems to me. Or am I making something out of nothing and should I just look at it like he
wasn't there and that's that?

[Gretel]

Jail

Black Bart, I share your concerns. Maybe intent also plays a role here. If hubby is in jail and she is unforgiving and doesn't want him to come back, it's not a temporary absense, in my opinion. Like in real life she might change her mind seeing what this does to their children.

Who knows what going on in people's mind.

[Armando Beaujolais]

Mr. Bart,

I agree with Gabriele's reasoning, although I can't find anything in regs or court cases, etc., that deals directly with the issue of being in prison.

Regulation 1.7703-1(b)(5) talks about member of household and temporary absence. It's one paragraph and doesn't go into many facts and circumstances. It does contain the following sentence:

"...A nonpermanent failure to occupy such household as his abode by reason of illness, education, business, vacation, or military service shall be considered a mere temporary absence due to special circumstances."

I think the word "nonpermanent" might be the one we're looking for in defining "temporary." And if that's the case, as Gabriele stated, it would seem to depend on whether the wife intended to allow the errant husband back into the house.

Now to apply reality to the situation. I also have clients with husbands in prison, and my experience is that if you ask them if they're going to get back together after the sentence, their answer will depend on what day of the week you ask them. I have one client who started out MFS and swore she'd never have anything to do with that cad again, then when she saw the result she had me change it to MFJ, then in going through lawyers to try to get that signed, she went back to MFS, then finally MFJ again. I think she'd have gone back and forth forever if I hadn't gotten her attention by how much her bill for preparation would be and the fact that if she changed her mind again I was going to double my rate.

[Unregistered]

BoJo and the Full (Monty) Gabriele

I think you're both right depending on whichever way these things happen.

The problem is that she did want him back and he did return. They're together right now straightening out their taxes for the past few years, so apparently she wanted the charmer back. Why wouldn't she? He's not bad, he's just [i[misunderstood[/i]. He is (for the moment) a permanent resident.

Now, back to real life. I think I'll just play it by ear and let my conscience (make that my risk of liability) be my guide.

[Mark Goldberg]

Am I missing something

Black Bart, you said the year in question is expired. To me that means it is like 2000 or 1999 or something. So, there is a lot of histroy to look at. The husband was out of the house for more than 6 months in the year in question. Then what? If he was incarcerated for more than 1 year I would deem this not temporary and go for H of H. If he came back within 1 year then I would say not temporarilly away.

[Black Bart]

Mark

Yeah, actually it is year 2000 I'm working on now. He was in prison in '00 and '01 for a total of 14 months, but outside of the last eight months of 2000, I don't know yet just exactly what months he was in during the two years (whether or not it was continuous or intermittent). They are looking it up because I am filing up through '04 for them.

About the one year period you mention; is that what you believe would be reasonable (sounds good to me) to say he's not temporary or do you know of a reference? Thanks.

[Black Bart]

she might change her mind seeing what this does to their children.

I don't think this is a big concern. He was in again during 2002 for some period of time.

"Gee, Officer Krupke, my parents treat me rough. They both smoke marijuana, but they won't give me a puff." -- Broadway musical play - WEST SIDE STORY, 'Officer Krupke.'

[Armando Beaujolais]

Black Bart, you said the year in question is expired. To me that means it is like 2000 or 1999 or something. So, there is a lot of histroy to look at. The husband was out of the house for more than 6 months in the year in question. Then what? If he was incarcerated for more than 1 year I would deem this not temporary and go for H of H. If he came back within 1 year then I would say not temporarilly away.

A one-year rule is for moving expenses or temporary employment. There's no one-year rule for HoH filing status.

The regs talk about "temporary" being military (could be years), education (could be years).

I'd go back to the reg's phrasing "nonpermanent" as the definition of "temporary." Especially if she took the poor, misunderstood guy back into her home because she was certain her unwavering love and support would make him see the light, I don't see any way you could reasonably say the absence was permanent.

I thought it was a stretch, but perhaps worth a desperation shot, before I knew he actually did move back in. Now I don't see any fact or circumstance that says temporary.