Janitor Bob Posted February 2, 2015 Author Report Share Posted February 2, 2015 I would assume so, but client said they did not live together at all. I will warn the client that IRS may question this and that she will responsible for convincing them that they lived apart for the last 6 months of the year. I'm also not convinced that spending one night together would constitute living together. I am convinced that the client filing HOH is in the spirit and meaning of the rules. She really is taking care of the kid and the household all by herself....so its "seems" right...for whatever that is worth. Quote Link to comment Share on other sites More sharing options...
kcjenkins Posted February 2, 2015 Report Share Posted February 2, 2015 Just got to ask.......What reason did she give you for getting married? Quote Link to comment Share on other sites More sharing options...
MsTabbyKats Posted February 2, 2015 Report Share Posted February 2, 2015 I don't think marriages are reported to the IRS. I know, in 2 cases I did, I filed people as "joint". Later on I found out they were just living together...and NY is not a common law state...so, in no sense of the word were they married. Quote Link to comment Share on other sites More sharing options...
RitaB Posted February 2, 2015 Report Share Posted February 2, 2015 (edited) I am convinced that the client filing HOH is in the spirit and meaning of the rules. She really is taking care of the kid and the household all by herself....so its "seems" right...for whatever that is worth. Bob, you know I love you. But I have been thinking all this time: "The spirit of the law is to help parents whose spouse left in the first half of the year." And I do realize my thoughts are worth exactly zero, what the law was INTENDED to do means exactly zero, and I do see your point as well. Edited February 2, 2015 by RitaB Quote Link to comment Share on other sites More sharing options...
Janitor Bob Posted February 2, 2015 Author Report Share Posted February 2, 2015 I want to do the client's return CORRECTLY.....In a way that would stand up to an audit...because that's I I do taxes. I have postponed my meeting with client to research this further. Quote Link to comment Share on other sites More sharing options...
Jack from Ohio Posted February 2, 2015 Report Share Posted February 2, 2015 From the information you have provided, they are married. MFJ or MFS are the only options. Yes, even one night negates the "abandoned spouse" intent of "considered single." Auditor would throw out the HOH. 1 Quote Link to comment Share on other sites More sharing options...
Janitor Bob Posted February 2, 2015 Author Report Share Posted February 2, 2015 Client now confided in me that the spouse did stay with her 11/22-12/06 while on leave. 3 Quote Link to comment Share on other sites More sharing options...
Terry D EA Posted February 2, 2015 Report Share Posted February 2, 2015 We are talking about the difference here between MFJ/MFS being married and "considered" unmarried. Under the post from Yardley CPA, it would appear your client is "considered unmarried" for HOH purposes. It does not make reference to temporary absences or the necessity for a spearation agreement or divorce decree. The facts state they must not have lived together for the last 6 months of the year. With that said, if he came home to get married and then left I would think you would have a good argument for HOH. They do appear to meet all of the other tests. His place of residence (mailing address; etc) didn't change and I am sure their is evidence from the military as to where he has been stationed and for what time period. i don't think a week or two of leave constitutes a change of residence. Quote Link to comment Share on other sites More sharing options...
kcjenkins Posted February 2, 2015 Report Share Posted February 2, 2015 1. The taxpayer must be unmarried or considered unmarried on the last day of the tax year. A taxpayer is considered unmarried under IRC § 7703 if on the last day of the year if they are legally separated from their spouse, according to the law if the state taxpayer resides in, under a divorce or separate maintenance decree, or the taxpayer meets all of the following tests: (a) Taxpayer filed a separate return. (b ) Taxpayer paid more than half the cost of keeping up taxpayer’s home for the tax year. (c ) Taxpayer’s spouse did not live in taxpayer’s home during the last 6 months of the tax year. Spouse is considered to live with taxpayer even if they are temporarily absent due special circumstances. For this, please remember that other rules state that a member of the military who is deployed on active duty is considered to be a temporary absence no matter how long the time involved. (d) Taxpayer’s home was the main home of the child, stepchild, or eligible foster child for more than half the year. (e) Taxpayer must be able to claim an exemption for the child. Taxpayer may still meet this test if they cannot claim the exemption because the noncustodial parent is allowed to claim the exemption for the child. 3 Quote Link to comment Share on other sites More sharing options...
kcjenkins Posted February 3, 2015 Report Share Posted February 3, 2015 BTW, Here is a link to a very good review of many filing status issues, which is loaded with cites, which I found valuable a number of times. http://taxclinic.law.gsu.edu/filing-status/ Quote Link to comment Share on other sites More sharing options...
Jack from Ohio Posted February 3, 2015 Report Share Posted February 3, 2015 1. The taxpayer must be unmarried or considered unmarried on the last day of the tax year. A taxpayer is considered unmarried under IRC § 7703 if on the last day of the year if they are legally separated from their spouse, according to the law if the state taxpayer resides in, under a divorce or separate maintenance decree, or the taxpayer meets all of the following tests: (a) Taxpayer filed a separate return. (b ) Taxpayer paid more than half the cost of keeping up taxpayer’s home for the tax year. (c ) Taxpayer’s spouse did not live in taxpayer’s home during the last 6 months of the tax year. Spouse is considered to live with taxpayer even if they are temporarily absent due special circumstances. For this, please remember that other rules state that a member of the military who is deployed on active duty is considered to be a temporary absence no matter how long the time involved. (d) Taxpayer’s home was the main home of the child, stepchild, or eligible foster child for more than half the year. (e) Taxpayer must be able to claim an exemption for the child. Taxpayer may still meet this test if they cannot claim the exemption because the noncustodial parent is allowed to claim the exemption for the child. Isn't that directly from Pub 17? I am surprised at all the answers to the contrary of what has been the rules for decades. 1 Quote Link to comment Share on other sites More sharing options...
Janitor Bob Posted February 3, 2015 Author Report Share Posted February 3, 2015 A, B, D, E all apply....What's getting me is (c ) in KC cite above. I agree this would apply if they had lived together and he had to leave for military deployment...but spouse is not absent due to military...He never lived with the client...The fact that he is in the military is irrelevant. BUT he never lived with her. He has never shared an address with her. The only thing stopping me from filing her as HOH is wondering if the days he spent with her on leave would be considered living together by IRS...I don't consider it living together, but I'm concerned with what an auditor would feel. Quote Link to comment Share on other sites More sharing options...
JMovichEA Posted February 3, 2015 Report Share Posted February 3, 2015 <...but spouse is not absent due to military...He never lived with the client...The fact that he is in the military is irrelevant. > Then why is he absent? How is the fact he is in the military irrevelant in this case? Would he live with your client if he wasnt in the military? Quote Link to comment Share on other sites More sharing options...
Janitor Bob Posted February 3, 2015 Author Report Share Posted February 3, 2015 He is not "absent". He has never lived with my client...he has lived and still permanently lives in California. Client has and still lives in Ohio. Spouse just also happens to be in military and is permanently stationed there...I just have trouble seeing that as a temporary absence due to deployment. Quote Link to comment Share on other sites More sharing options...
MsTabbyKats Posted February 3, 2015 Report Share Posted February 3, 2015 He is not "absent". He has never lived with my client...he has lived and still permanently lives in California. Client has and still lives in Ohio. Spouse just also happens to be in military and is permanently stationed there...I just have trouble seeing that as a temporary absence due to deployment. I'm with you. If he weren't in the military he'd be in CA...and she'd be in OH. This may not be the popular answer here: I'd file as HOH and warn the client that the IRS may challenge it. Quote Link to comment Share on other sites More sharing options...
Pacun Posted February 3, 2015 Report Share Posted February 3, 2015 If they married in prior to June 25 and the circumstances would be the same, I would feel somewhat uncomfortable to file as HOH but I would do it. In this case I would not feel comfortable at all to file as HOH and I would lose that client and suggest to go somewhere else. Quote Link to comment Share on other sites More sharing options...
Janitor Bob Posted February 3, 2015 Author Report Share Posted February 3, 2015 Thanks Pacun (and others)...I'm really struggling with this one. Quote Link to comment Share on other sites More sharing options...
jklcpa Posted February 3, 2015 Report Share Posted February 3, 2015 I know you are struggling to come to a decision because of the "temporary absence" aspect included in the requirements to be considered "unmarried". In other pubs such as 504 for divorced or separated individuals, it also has a section for HOH and unmarried and temporary absences. For temporary absences it says this (bold is mine for emphasis): Temporary absences. You and your qualifying person are considered to live together even if one or both of you are temporarily absent from your home 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. You must continue to keep up the home during the absence. With the above in mind, isn't it reasonable to assume that this couple will live together at the end of his duty? Maybe not, but you've already said that at the end of his duty in 2 years, this couple plans to live together. (your post #13 on page 1 of this topic). They are married at the end of the year, and I would file this return as either MFJ or MFS. I think HOH no longer applies, no matter how much you or the client wants it to. Just my 2 cents. 4 Quote Link to comment Share on other sites More sharing options...
Janitor Bob Posted February 3, 2015 Author Report Share Posted February 3, 2015 I totally get the entire "Temporary Absence" thing. The only reason I still cling to the HOH is the word "absence". Can he be absent if he was never "present". He never lived with my client to begin with so can he be absent? Grasping? Quote Link to comment Share on other sites More sharing options...
jklcpa Posted February 3, 2015 Report Share Posted February 3, 2015 I think you are being too literal. His absence is due to the military service, and if that wasn't the case, wouldn't he be living in the home with his wife now, so isn't the "absence" due to the military posting with the expectation that ultimately they will live together when his military duty ends? I just wouldn't be comfortable at all filing the wife's return as anything other than married. 3 Quote Link to comment Share on other sites More sharing options...
Terry D EA Posted February 3, 2015 Report Share Posted February 3, 2015 I stand corrected on my earlier post and I totally see where others are coming from. In Judy's and KC's answers the "temporary absence" is well defined and does include military service. So, I have retract my earlier statment and agree that the only choices here are MFS/MFJ. I would have to file it this way to be 100% comfortable with the return. I know this isn't what you want to hear JB, but whether he was ever in the home or not doesn't come into play. The fact remains they were married on the last day of the tax year by your original post. 3 Quote Link to comment Share on other sites More sharing options...
easytax Posted February 3, 2015 Report Share Posted February 3, 2015 I would assume so, but client said they did not live together at all. I will warn the client that IRS may question this and that she will responsible for convincing them that they lived apart for the last 6 months of the year. I'm also not convinced that spending one night together would constitute living together. I am convinced that the client filing HOH is in the spirit and meaning of the rules. She really is taking care of the kid and the household all by herself....so its "seems" right...for whatever that is worth. A, B, D, E all apply....What's getting me is (c ) in KC cite above. I agree this would apply if they had lived together and he had to leave for military deployment...but spouse is not absent due to military...He never lived with the client...The fact that he is in the military is irrelevant. BUT he never lived with her. He has never shared an address with her. The only thing stopping me from filing her as HOH is wondering if the days he spent with her on leave would be considered living together by IRS...I don't consider it living together, but I'm concerned with what an auditor would feel. JB, One night can mean everything --- if they had married (been pronounced) on December 31 at one minute before midnight, they would be considered 'married" for the entire year. I know this as a personal fact as I married two attorneys at 1 minute after midnight on technically January 1 (I specifically asked and they wanted to be the "first married couple" for that year, rather than the last couple for the previous year). NOTE: I made sure and had the attorney's also research --- as I do not like to do something an attorney can come back on --- say, if the date of marriage, etc. might eventually mean something. If the IRS considers the very last moment of the year as "marriage", would they not consider a few minutes, etc. as "living together" and scuttle your HOH? Therefore --- yes, just one night, moment, etc. can count. MFS or MFJ --- NOT HOH. 4 Quote Link to comment Share on other sites More sharing options...
Janitor Bob Posted February 3, 2015 Author Report Share Posted February 3, 2015 I feel I have put up a valiant effort for my client...I always want to make them happy...but more importantly I want to prepare their taxes correctly. After reviewing all the publications and regulations in depth and getting opinions here and elsewhere, I am back to my original opinion...MFS with no EIC. I just don't think I will sleep well preparing a return that I do not believe would stand up to IRS audit/scrutiny....and the penalties for me and client are too great when it comes to EIC. I got the client to understand that the absence is due to military service and thus nullifies the exception....she just has a problem with the term "temporary"...because in her words "it's not temporary, its for almost 1-1/2 years because he will be stationed there until 10/15/16". But it is not forever...this temporary. Thanks again to all on here for helping me through this....Your combined wisdom and knowledge is both valuable and humbling. 5 Quote Link to comment Share on other sites More sharing options...
Lion EA Posted February 3, 2015 Report Share Posted February 3, 2015 Talk to her about MFJ. It might save them both some money. 2 Quote Link to comment Share on other sites More sharing options...
Randall Posted February 3, 2015 Report Share Posted February 3, 2015 Whew. MFS or MFJ or find someone else to do your tax return. 2 Quote Link to comment Share on other sites More sharing options...
Recommended Posts
Join the conversation
You can post now and register later. If you have an account, sign in now to post with your account.