Amended Return/Filing Status

[Kurly]

Potential new client:

2003 MFJ
2004 MFS Spouse HOH
2005 MFS Spouse HOH

Living apart client in Las Vegas, Spouse with child in Utah

Can we now go back and amend these returns as MFJ?

IRS help line has told him that they can not file MFJ, because they are not living under the same roof.

How long can they not live under same roof and still file MFJ?

HELP IRS code, cases or what info you might have.

He works and maintains a small apt near the hospital due to his expertise with pre born babies and children trauma. He returns to Utah twice a month for a few days and she in turn travels to Las Vegas monthly for a few days.

thanks much Kurly

[Bird Legs]

Filing status

The couple can file MFJ as long as they are legally married. See TTB page 3-13.
Married Filing Joint: A taxpayer can file a joint return in 2006 with a spouse if:
1: Taxpayer was married at the end of 2006, even if taxpayer did not live with spouse at the end of 2006.
A taxpayer can file MFJ if both spouses agree.

[jainen]

It must be true

>>IRS help line has told him that they can not file MFJ, because they are not living under the same roof.<<

It must be true because so many people report horrendous errors by the IRS. Personally I have never experienced one. The public servants I get on the phone always seem very well trained in a conservative but complete understanding of Pub 17.

When a client tells me something as weird as this, I try to find out EXACTLY what the client asked. Without fail, the IRS answer turns out to be correct.

[Koss]

Potential new client:

2003 MFJ
2004 MFS Spouse HOH
2005 MFS Spouse HOH

Living apart client in Las Vegas, Spouse with child in Utah

Can we now go back and amend these returns as MFJ?

IRS help line has told him that they can not file MFJ, because they are not living under the same roof.

How long can they not live under same roof and still file MFJ?

HELP IRS code, cases or what info you might have.

He works and maintains a small apt near the hospital due to his expertise with pre born babies and children trauma. He returns to Utah twice a month for a few days and she in turn travels to Las Vegas monthly for a few days.

thanks much Kurly

Married persons living apart may file MFJ. The IRS rep may be misinterpreting the section of Pub. 17 that states that a married person living apart from the spouse during the last six months of the year is "considered unmarried" if certain other conditions are met. This particular section is found on page 23 of Pub. 17 for 2006. In order to be "considered unmarried," there are five tests that must be met, and they include having a child, maintaining the household, and not living with the spouse during the last six months.

So it may appear, on the surface, that someone who is separated and has a child, and meets these conditions to use Head of Household, is "considered unmarried," and therefore cannot file a joint return. But this is not the case. The very first of the five tests for "considered unmarried" is: You file a separate return.

In order to be "considered unmarried" under the rules laid out on page 23 of Pub. 17, the taxpayer must first choose to file a separate return from their spouse. If the spouses who live apart choose to file a joint return, then they are not "considered unmarried" under the special rules laid out on page 23.

See Pub. 17, bottom right had corner of page 20:

* * * * *

Considered married. You are considered married for the whole year if on the last day of your tax year you and your spouse meet any one of the following tests:

3. You are married and living apart, but not legally separated under a decree of divorce or separate maintenance.

* * * * *

Burton M. Koss

[DaveO]

Don't they have to amend?

Living apart for the last 6 months is a requirement of the HOH status the regular "visits" could be contrued as time living together. I recall a court case I read some years back about the HOH status being disallowed due to a single night sleepover.

[oceanlovin'ea]

not really separated

It appears to me that this couple is not really separated by choice. He works in another city to take care of his family. They are still married and still a family. I think the term "separated" is being misapplied. Separated means that they don't want to live together and are taking a break from their marriage. Doesn't sound like the case here.

So MFJ would be the correct status for them. Perhaps when he spoke to the IRS person he wasn't clear enough about the situation.

We just went on a cruise and most of the staff on the cruise are married but they are on the ships for 6 months at a time. Then they get to go home and spend 2 months with their family and back out again for 6 months. But they consider themselves married even though they are away from their family.

Linda F