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Amending to MFJ from HOH & Single, do both need to file?


giogis245

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Taxpayers are married but they had filed Single and HOH elsewhere, now they feel like doing the right thing and amending the return, just to confirm both will have to amend their return correct?  The single one from single to MFJ and the HOH from HOH to MFJ and both will have to pay in the difference as I'm seeing both will have to pay in.  I just got a little confused as if there should only be 1 amendment filed?  

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I agree that the amended return would be one filing.  Filing a married joint return after filing with incorrect statuses only available to unmarried taxpayers was permitted in Camara v Commissioner, 149 TC No. 13 (2017).  Although the Tax Court ruled that the incorrect filing was not a "separate return", I think you would still use the portion of the Form 1040X instructions under "You are changing from a separate to a joint return" on page 7 of those instructions:

You are changing from separate to a joint return. If you and your spouse are changing from separate returns to a joint return, follow these steps.

1. Enter in column A the amounts from your return as originally filed or as previously adjusted (either by you or the IRS).

2. To determine the amounts to enter in column B, combine the amounts from your spouse’s return as originally filed (or as previously adjusted) with any other changes you or your spouse are making. If your spouse didn’t file an original return, include your spouse’s income, deductions, credits, other taxes, etc., in the amounts you enter in column B.

3. Read the instructions for column C to figure the amounts to enter in that column.

4. Both of you must sign and date Form 1040X.

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5 hours ago, EricF said:

I agree that the amended return would be one filing.  Filing a married joint return after filing with incorrect statuses only available to unmarried taxpayers was permitted in Camara v Commissioner, 149 TC No. 13 (2017).  Although the Tax Court ruled that the incorrect filing was not a "separate return", I think you would still use the portion of the Form 1040X instructions under "You are changing from a separate to a joint return" on page 7 of those instructions:

You are changing from separate to a joint return. If you and your spouse are changing from separate returns to a joint return, follow these steps.

1. Enter in column A the amounts from your return as originally filed or as previously adjusted (either by you or the IRS).

2. To determine the amounts to enter in column B, combine the amounts from your spouse’s return as originally filed (or as previously adjusted) with any other changes you or your spouse are making. If your spouse didn’t file an original return, include your spouse’s income, deductions, credits, other taxes, etc., in the amounts you enter in column B.

3. Read the instructions for column C to figure the amounts to enter in that column.

4. Both of you must sign and date Form 1040X.

I'm not sure if this actually applies. I take most of what you posted as amending from MFS to MFJ. My take is separate amendments. Where do you get the figures for the first column of the 1040X? It asks specifically for the amounts on the original return. May be the out here is do one 1040X with copies of the two originals attached with a statement attached showing the calculations to substantiate the amounts in the first column of the 1040X. 

 

9 hours ago, giogis245 said:

Taxpayers are married but they had filed Single and HOH elsewhere, now they feel like doing the right thing and amending the return, just to confirm both will have to amend their return correct?  The single one from single to MFJ and the HOH from HOH to MFJ and both will have to pay in the difference as I'm seeing both will have to pay in.  I just got a little confused as if there should only be 1 amendment filed?  

I'm a bit confused. The returned filed single would seem to benefit from the MJF status where the HOH might stay the same. Let me be that bad guy here, sounds like these folks may have been on the outs with each other and now gotten back together and looking for a benefit. Maybe as you say, they just want to do the right thing. I would want to ask some more questions to see if there is something sleeping under the rug here that could take a chunk of me later. Then again, maybe I am way off here.

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22 hours ago, giogis245 said:

Taxpayers are married but they had filed Single and HOH elsewhere, now they feel like doing the right thing and amending the return, just to confirm both will have to amend their return correct?  The single one from single to MFJ and the HOH from HOH to MFJ and both will have to pay in the difference as I'm seeing both will have to pay in.  I just got a little confused as if there should only be 1 amendment filed?  

No, just amend whoever you want to be first on the return and add the other taxpayer. IRS knows how to handle this.

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I've done this in a case where a couple chose MFS because they thought it would give her child more college financial aid.  It didn't and it cost them a lot in taxes.  H was listed first on their previous returns so I amended his only.  I've also done this for the same scenario giogis has.  Do the same thing, amending one return.  The only problem I had was the explanation.  "Forgot they were married" had to do.

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Sounds like an IRC 6013(b) situation. https://www.law.cornell.edu/uscode/text/26/6013

I'd file a joint 1040, not an amendment, since that's what the code says to do. But that's probably me being pedantic. Either way will probably work, once the IRS employees start working again, especially since it sounds like they're offering to give the IRS money.

Note IRC 6013(b)(5): Filing the joint return doesn't get them off the hook for penalties, including criminal penalties, if they filed the original returns negligently/fraudulently.

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Something else to consider is whether or not the HOH return was a valid filing status. If so, it might be more beneficial to just amend the Single to MFS.

But from your description ("they feel like doing the right thing") it doesn't sound that way.

I mention the part about not getting them off the hook for penalties, because I've come across filers who used to intentionally file this way to get a refund as a temporary loan of sorts. They got upset when I refused to file their (initial, fraudulent) returns for them after they told me that plan. I'd definitely let them know that even if they get away with it this time, they shouldn't do it again.

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Well, after reading Camara v Commissioner, it seems that the Tax Court disagrees with me that this is a 6013(b) situation. That strikes me as a convoluted ruling. Does anyone know if the IRS acquiesced to it? In Camara the ruling was in the taxpayer's favor, but in some other cases it might be to the taxpayer's detriment.

In any case, the procedural response seems to be the same. "Mr. Camara and Ms. Jatta filed with the Internal Revenue Service (IRS) a joint 2012 return."

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Thanks, Eric. I'm still trying to wrap my head around the impact of this decision. It might be more narrow than I initially suspected.

There probably *are* a lot of taxpayers who filed single or HOH even though they were married, considering same-sex couples who filed before Obergefell. But I'm not sure this ruling changes anything for the majority of them.

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