Amending Separate to Joint, 3+ Years Later

[George Boutwell]

On another message board, someone asked about amending from separate to joint after the husband's original return was filed more than 3 years late. Part of the discussion involves the IRS use of commercial tax publications as authority for denying the change. One of our esteemed colleagues from this board, however, has not yet pointed out that the Code (which is available online) states:

Section 6013 (b) Joint return after filing separate return
(1) In general. Except as provided in paragraph (2), if an individual has filed a separate return for a taxable year for which a joint return could have been made by him and his spouse under subsection (a) and the time prescribed by law for filing the return for such taxable year has expired, such individual and his spouse may nevertheless make a joint return for such taxable year. . . .
(2) Limitations for making of election. The election provided for in paragraph (1) may not be made—
(A) after the expiration of 3 years from the last date prescribed by law for filing the return for such taxable year (determined without regard to any extension of time granted to either spouse); . . .

What's interesting about this question, though, is that the original return filed by the "husband," who apparently did not realize he was married in a common-law state, showed filing status as single. Does it make a difference? Probably not; it could have been a "separate" return because of HoH rules, also.

[BJM]

Amending Separate to Joint

I responded to that message on the other board. I told them that any commercial reference or for that matter any IRS pub or instructions are not authorites for a position taken by a Revenue Agent, or if this was in collection, a Revenue Officer. That the only cite would be the IRC and they could find it on line. The workpapers for an Agent would only reference to the IRC and if the adjustment was unagreed that the workpapers for the unagreed case would include the IRC, regs and court cases. The other cites mentioned there could be shown to the taxpayer just to clarify a proposal informally if the RA or RO would have a copy with them, but never relied upon to take a position.

[LTS]

filing status & texas as a common law state

the other board was a single return (with live-in as a dependent) from 99-05, filed in 6/06, with a large total balance due. as GB documents, there may be a statute of limitation on going from sep to joint, but i don't think that is not the case here.

my quess (sorry no cite) is that an amended single to common law joint is available to reduce prior year tax liabilities, regardless of time, as long as it doesn't get into a statute of limitation refund.