IRC § 6013 permits the filing of joint returns by spouses. It should be noted that the Code has not adapted to the times, and it still lists “husbands and wives” as the only persons who may make a single return jointly. For purposes of equality and inclusion, and to stick it to the patriarchy, I will use the term spouses.
The most interesting aspect of IRC § 6013 is the ability for a delinquent filing spouse to join a spouse who filed timely and to avoid late filing penalties. It’s a nifty little party trick, which I will discuss at greater length below. At the end of the day, IRC § 6013 is far more complicated that meets the eye. Fear not, though—by the end of this article, I’ll be an expert on the section, and hopefully you’ll get something out of it, too.
IRC § 6013(a) states that
Spouses may make a single return jointly of income taxes under Subtitle A, even though one of the spouses has neither gross income nor deductions, except as provided below.
There are three exceptions to the joint filing allowance.
The first exception is that no joint return may be made if either of the spouses are at any time during the taxable year a nonresident alien.[1] The second exception is that no joint return may be made if the husband and wife have different taxable years.[2] If, however, the taxable years are different only because one of the spouses died (thereby cutting that spouse’s taxable year rather short), then a joint return using both taxable years is appropriate.[3] Where the husband and wife have different taxable years because of the death of either spouse, the joint return shall be treated as if the taxable years of both spouses ended on the date of the closing of the surviving spouse’s taxable year.[4] If the gold-digger gets remarried during the year, then this exception to the exception does not apply.[5] The third exception is not really an exception, but a qualification. IRC § 6013(a)(3) provides a detailed listing of who may file a joint return with respect to a decedent and states that
in the case of death of one spouse or both spouses the joint return with respect to the decedent may be made only by his executor or administrator; except that in the case of the death of one spouse the joint return may be made by the surviving spouse with respect to both himself and the decedent if no return for the taxable year has been made by the decedent, no executor or administrator has been appointed, and no executor or administrator is appointed before the last day prescribed by law for filing the return of the surviving spouse.
Clear as mud, right?
Stated differently and with a bit of forethought and sense, if one or both of the spouses dies during the year, a joint return may only be filed by that spouse’s personal representative, executor, or administrator. What happens, however, if a personal representative has not been appointed? In that case, the surviving spouse may file a joint return with respect to the surviving spouse and the decedent.
Joint Return after Filing Separate Return
What happens in the event that one spouse files a separate return, and then the spouses have a change of heart and desire to file a joint return?
Whelp, IRC § 6013(b) provides that
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.
So, if one of the spouses has timely filed an individual return, the spouses could file joint returns under IRC § 6013(a),[6] and it is past the due date for filing the return, the spouses may still file a joint return for that taxable year. All payments, credits, refunds, or other repayments made or allowed with respect to the separate return will be taken into account in determining what the tax due on the joint return.
Importantly, if a separate return has been filed taking one position as to a taxable item, the subsequent joint return may not change the position taken by the separate return if the election would’ve been irrevocable if the joint return had not been made, such as IRC § 645.[7]
There are, of course, exceptions to the general rule that a joint return may be filed subsequent to the filing of a separate return:
First, the election may not be made three years subsequent to the last date for filing the return (determined without regard to any extension), i.e., April 15th.[8]
Second, the election may not be made if a notice of deficiency has been mailed to either spouse (for the specific tax year in which the spouses desire to file a joint return).[9]
Third, if a spouse has filed a refund suit for that taxable year, the election may not be made.[10]
Fourth and finally, if either spouse is entered into a closing agreement under IRC § 7121 with respect to that taxable year, or if a criminal or civil case has been compromised under IRC § 7122, no election may be made.[11]
When Return Deemed Filed
For purposes of assessment and collection under IRC § 6051,[12] and for purposes of IRC § 6651,[13] a joint return is deemed to have been filed on one of three dates.[14] Each of these dates includes any extension of time granted to either spouse.[15]
First, if both spouses filed separate returns prior to making the joint return, the joint return will be deemed filed on the later date the separate returns were filed. However, if the second separate return was filed earlier than the last date for filing the separate return, then the joint return will be treated as being filed on that last date for filing the separate return.[16]
Second, if only one spouse was required to file a separate return prior to making the joint return, because the non-filing spouse has less gross income than the exemption amount (as that term is used in IRC § 151),[17] the joint return will be treated as being filed on the date that such separate return has been filed. However, if the joint return was filed earlier than the last date for filing that return, then the joint return will be treated as being filed on that last date for filing the joint return.[18] When considering whether a spouse meets the exemption amount, in the event that the spouse is over 65 years old, the calculation of the exemption amount includes the additional standard deduction under IRC § 63(c)(2).[19]
Where only one spouse filed a separate return, and the other (non-filing) spouse should have filed a return (i.e., the delinquent spouse had gross income exceeding the personal exemption), then the return will be deemed to have been filed on the date of the filing of such joint return.[20]
Finally, for purposes the limitations period for credits or refunds under IRC § 6511, a joint return made under IRC § 6013 will be deemed to have been filed on the last date for filing the return – without regard to any extension of time granted to either spouse.
So, to recap:
If both spouses filed separate returns, the joint return will be treated as having been filed on the date the last separate return was filed.
If only one spouse was required to file a separate return, the joint return will also be treated as having been filed on the date that separate return was filed.
Where both spouses were required to file returns, but only one spouse did, the return will be deemed to have been filed on the date the joint return was filed.
For purposes of refunds and credits, a joint return will be deemed to have been filed on the last date prescribed for filing the return (without regard to extensions).
Additional Time for Assessment on Joint Return
If a joint return is made under IRC § 6013, the periods of limitation on assessment[21] and the beginning of a levy or collection action[22] will include one year immediately after the date of filing the joint return.[23] Thus, if the joint return was filed at the end of the three-year window provided in IRC § 6013(2)(A), the IRS will have at least one year from the date the return was filed to assess tax commence, begin a levy, or institute a collection action. Importantly, the one-year extension from the date the joint return was filed is computed without respect to IRC § 6013(b)(3).[24]
Additions to Tax and Penalties
For purposes of computing additions to tax, additional amounts, and assessable penalties, if there is underreporting on the joint return (i.e., where the sum of the amounts shown on the separate returns is less than the amount shown as tax on the joint return), the amount of tax deemed reported will be the lower joint return amount.[25] This means that if Uncle Bill filed a return reporting $150 in tax, and Aunt Ethel filed a return reporting $50 in tax, and they later decided to file a joint return under IRC § 6013 reporting $100 of tax, the IRS will calculate any penalties on the lower $100 number.
If a joint return is filed under IRC § 6013 subsequent to one or both spouses filing separate returns, any negligence or disregard of rules or regulations on either of the separate returns will be treated as negligence or disregard on the joint return.[26] Further, any fraud on either separate return will be treated as fraud on the joint return. Finally, for purposes of criminal penalties in the case of fraudulent returns,[27] the term “return” also includes a separate return filed by spouse prior to the filing of a joint return under IRC § 6013.
Special Rules
Whether two spouses are married is determined at the close of the taxable year (if both spouses have the same taxable year), but if one spouse dies before the close of the taxable year, it is determined at the date of death.[28] Individuals who are legally separated under a decree of divorce or of separate maintenance are not considered married for purposes of IRC § 6013.[29] The rules of aggregation of income and liability (i.e., joint and several) apply in equal measure to returns filed under IRC § 6013 as any other joint return.[30]
Joint Return Where Individual is in Missing Status
If one spouse is missing in action as a result of service in a combat zone, the non-missing spouse is entitled to file a joint return for any taxable year beginning on or before the date which is two years after the termination of combatant activities in such zone.[31]
Election to Treat Nonresident Alien Individual as U.S. Resident
Even though nonresident aliens may not generally file joint returns under IRC § 6013, an exception is made if an election is made under IRC § 6013(g)(1). Under IRC § 6013(g), a nonresident alien individual married to a citizen or resident of the United States may make such election with their spouse at the close of the taxable year.[32]
The election will continue until terminated in one of four ways. The election can be revoked by the taxpayers, a taxpayer-spouse may die, the spouses may legally separate, or the IRS may terminate the election. An election will be terminated by the IRS if either spouse has failed to keep books and records under IRC § 6001 or has failed to grant access to such books or records order to supply other information to the IRS.
Additionally, if a nonresident alien individual married to a U.S. resident or citizen becomes a resident of the United States before the close of the taxable year, and both spouses elect the benefits of IRC § 6013(h), then the former nonresident alien will be treated as a resident of the United States for all of the taxable year.
Footnotes:
[1] IRC § 6013(a)(1).
[2] IRC § 6013(a)(2).
[3] Id.
[4] IRC § 6013(c).
[5] IRC § 6013(a)(2).
[6] Assuming one of the spouses is not a non-resident alien, etc.
[7] Election to Treat a Trust as an Estate.
[8] IRC § 6013(b)(2)(A).
[9] IRC § 6013(b)(2)(B).
[10] IRC § 6013(b)(2)(C).
[11] IRC § 6013(b)(2)(D).
[12] Relating to periods of limitations on assessment and collection.
[13] Related to the failure to file and failure to pay penalties and delinquent returns in general.
[14] IRC § 6013(b)(3)(A).
[15] See Treas. Reg. § 1.6013-2(c)(1).
[16] IRC § 6013(b)(3)(A)(i).
[17] Related to the allowance of deductions for personal exemptions.
[18] IRC § 6013(b)(3)(A)(ii).
[19] IRC § 6013(b)(3)(A) (flush language).
[20] IRC § 6013(b)(3)(A)(iii).
[21] IRC § 6501.
[22] IRC § 6502.
[23] IRC § 6013(b)(4).
[24] Rules regarding deemed filing dates.
[25] IRC § 6013(b)(5)(A)(i).
[26] IRC § 6013(b)(5)(A)(ii).
[27] IRC § 7206(1) and (2); IRC § 7207.
[28] IRC § 6013(d)(1).
[29] IRC § 6013(d)(2).
[30] IRC § 6013(d)(3).
[31] IRC § 6013(e).
[32] IRC § 6013(g)(2).
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