Divorcing clients....thought I had seen it all

[Karen Lee]

Client comes in to have his taxes prepared...His wife left with their child on Dec 28, 2010. He supported them all year. She has filed her taxes taking child as dependent and filing HOH. Advised client that they either file MFJ or MFS and recommended MFJ. He said she won't sign since she already filed. Long discussion about how it was inappropriate for her to file the way she filed. I asked him to give his attorney permission to talk to me and I, of course, got a consent to disclose signed. The attorney called me and I told her that the wife cannot file as she did because it wasn't the case. Client called today and the court said that she could claim the child for 2010. I told the client that the IRS could not care less what the court said and that "they" need to file MFS or MFJ.

So here I am, cannot file MFJ because we do not have income info on wife and cannot get her signature. Cannot file MFS (community property state)for basically the same reason.

Now what do I do? I need to know where to go from here.

Thanks

Karen

[Terry D EA]

I dont't know what play the community property state has here. It appears your client has no choice but to file MFS. He cant' file MFJ which you already know. Don't you just love the courts? You are correct when you say the IRS could care less about the court's position with this.

[windmill]

Well, my client can't find his soon to be ex-wife to get her SSN. Married Feb 2010, never filed MFJ and so we are filing separately...I guess the best he can do is sign a letter stating that she disappeared. Any other thoughts?

[Kea]

I have had the occasional case where one spouse comes in & other spouse has already filed MFS. In those cases I file MFS with just that person's info. I, too, am in a community property state. I know you are supposed to split everything 50 /50, but if you don't have (and can't get) the info and the other has already filed, it's about the only option left. It's not like you have the option of not filing. You then have to paper file. I've done this 2 or 3 times over the last 13 years and not heard back from IRS. The only difference is that I've always been able to show the spouse's name & SSN, so you probably have a stronger case.

Good luck.

[BulldogTom]

If you really want to get into a fight with the spouse, file him as MFS but break out all the community property income and allocate her half to her. Send a letter to her attorney and show the split and ask for his share of her income from the community. I am assuming that she made a lot less than him.

It will blow up her return at the IRS, and by putting the Attorney in the middle of it, you have great documentation that you have made the statutory required time to provide the information.

It is going to guarantee your client an audit if you have to take this all the way, but it might make the spouse think twice about a MFJ return with a split of the refund.

Tom

Lodi, CA