Married Individual’s Single Return Not “Separate Return” (Camara, TC)

An individual, who erroneously claimed single filing status while married, was entitled to file joint returns. The individual’s original single return was not a “separate return” to which the limitations of Code Sec. 6013(b)(2) applied.

Government’s Argument

The government contended that the individual was prevented from switching to joint filing status for two reasons. First, he was barred from making the election to file jointly because it was more than three years after the deadline for filing the return at issue. Second, the election is barred after a deficiency notice for the tax year at issue has been mailed to either spouse.

Separate Return

However, a separate return means a return on which a married taxpayer has claimed the permissible status of married filing separately. It does not mean a return on which a married taxpayer has claimed an improper filing status. This is because filing a return with an improper filing status does not constitute an election under Code Sec. 6013(b)(1). There is no valid “choice” embodied in a return on which the taxpayer erroneously indicated a filing status that is not legally available.

In addition, the legislative history shows that Code Sec. 6013(b)(1) was only intended to provide taxpayers flexibility in switching from a proper initial election to file a separate return to an election to file a joint return. It was not intended to foreclose correction of an erroneous return. Therefore, Code Sec. 6013(b) does not apply unless the taxpayer previously filed a “married filing separately” return.

P.S. Morgan, CA-6, 86-2 ustc ¶9842, distinguished.

F. Camara, 149 TC —, No. 13, Dec. 61,030


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