26 U.S.C. § 6013 : US Code - Section 6013: Joint returns of income tax by husband and wife

Search 26 U.S.C. § 6013 : US Code - Section 6013: Joint returns of income tax by husband and wife

(a) Joint returns
A husband and wife 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:
(1) no joint return shall be made if either the husband or wife
at any time during the taxable year is a nonresident alien;
(2) no joint return shall be made if the husband and wife have
different taxable years; except that if such taxable years begin
on the same day and end on different days because of the death of
either or both, then the joint return may be made with respect to
the taxable year of each. The above exception shall not apply if
the surviving spouse remarries before the close of his taxable
year, nor if the taxable year of either spouse is a fractional
part of a year under section 443(a)(1);
(3) 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. If an executor or
administrator of the decedent is appointed after the making of
the joint return by the surviving spouse, the executor or
administrator may disaffirm such joint return by making, within 1
year after the last day prescribed by law for filing the return
of the surviving spouse, a separate return for the taxable year
of the decedent with respect to which the joint return was made,
in which case the return made by the survivor shall constitute
his separate return.
(b) Joint return after filing separate return
(1) In general
Except as provided in paragraph (2), 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. A joint
return filed by the husband and wife under this subsection shall
constitute the return of the husband and wife for such taxable
year, and all payments, credits, refunds, or other repayments
made or allowed with respect to the separate return of either
spouse for such taxable year shall be taken into account in
determining the extent to which the tax based upon the joint
return has been paid. If a joint return is made under this
subsection, any election (other than the election to file a
separate return) made by either spouse in his separate return for
such taxable year with respect to the treatment of any income,
deduction, or credit of such spouse shall not be changed in the
making of the joint return where such election would have been
irrevocable if the joint return had not been made. If a joint
return is made under this subsection after the death of either
spouse, such return with respect to the decedent can be made only
by his executor or administrator.
(2) Limitations for making of election
The election provided for in paragraph (1) may not be made -
(A) after the expiration of 3 years from the last date
prescribed by law for filing the return for such taxable year
(determined without regard to any extension of time granted to
either spouse); or
(B) after there has been mailed to either spouse, with
respect to such taxable year, a notice of deficiency under
section 6212, if the spouse, as to such notice, files a
petition with the Tax Court within the time prescribed in
section 6213; or
(C) after either spouse has commenced a suit in any court for
the recovery of any part of the tax for such taxable year; or
(D) after either spouse has entered into a closing agreement
under section 7121 with respect to such taxable year, or after
any civil or criminal case arising against either spouse with
respect to such taxable year has been compromised under section
7122.
(3) When return deemed filed
(A) Assessment and collection
For purposes of section 6501 (relating to periods of
limitations on assessment and collection), and for purposes of
section 6651 (relating to delinquent returns), a joint return
made under this subsection shall be deemed to have been filed -

(i) Where both spouses filed separate returns prior to
making the joint return - on the date the last separate
return was filed (but not earlier than the last date
prescribed by law for filing the return of either spouse);
(ii) Where only one spouse filed a separate return prior to
the making of the joint return, and the other spouse had less
than the exemption amount of gross income for such taxable
year - on the date of the filing of such separate return (but
not earlier than the last date prescribed by law for the
filing of such separate return); or
(iii) Where only one spouse filed a separate return prior
to the making of the joint return, and the other spouse had
gross income of the exemption amount or more for such taxable
year - on the date of the filing of such joint return.
For purposes of this subparagraph, the term "exemption amount"
has the meaning given to such term by section 151(d). For
purposes of clauses (ii) and (iii), if the spouse whose gross
income is being compared to the exemption amount is 65 or over,
such clauses shall be applied by substituting "the sum of the
exemption amount and the additional standard deduction under
section 63(c)(2) by reason of section 63(f)(1)(A)" for "the
exemption amount".
(B) Credit or refund
For purposes of section 6511, a joint return made under this
subsection shall be deemed to have been filed on the last date
prescribed by law for filing the return for such taxable year
(determined without regard to any extension of time granted to
either spouse).
(4) Additional time for assessment
If a joint return is made under this subsection, the periods of
limitations provided in sections 6501 and 6502 on the making of
assessments and the beginning of levy or a proceeding in court
for collection shall with respect to such return include one year
immediately after the date of the filing of such joint return
(computed without regard to the provisions of paragraph (3)).
(5) Additions to the tax and penalties
(A) Coordination with part II of subchapter A of chapter 68
For purposes of part II of subchapter A of chapter 68, where
the sum of the amounts shown as tax on the separate returns of
each spouse is less than the amount shown as tax on the joint
return made under this subsection -
(i) such sum shall be treated as the amount shown on the
joint return,
(ii) any negligence (or disregard of rules or regulations)
on either separate return shall be treated as negligence (or
such disregard) on the joint return, and
(iii) any fraud on either separate return shall be treated
as fraud on the joint return.
(B) Criminal penalty
For purposes of section 7206(1) and (2) and section 7207
(relating to criminal penalties in the case of fraudulent
returns) the term "return" includes a separate return filed by
a spouse with respect to a taxable year for which a joint
return is made under this subsection after the filing of such
separate return.
(c) Treatment of joint return after death of either spouse
For purposes of sections 15, 443, and 7851(a)(1)(A), 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.
(d) Special rules
For purposes of this section -
(1) the status as husband and wife of two individuals having
taxable years beginning on the same day shall be determined -
(A) if both have the same taxable year - as of the close of
such year; or
(B) if one dies before the close of the taxable year of the
other - as of the time of such death;
(2) an individual who is legally separated from his spouse
under a decree of divorce or of separate maintenance shall not be
considered as married; and
(3) if a joint return is made, the tax shall be computed on the
aggregate income and the liability with respect to the tax shall
be joint and several.
[(e) Repealed. Pub. L. 105-206, title III, Sec. 3201(e)(1), July
22, 1998, 112 Stat. 740]
(f) Joint return where individual is in missing status
For purposes of this section and subtitle A -
(1) Election by spouse
If -
(A) an individual is in a missing status (within the meaning
of paragraph (3)) as a result of service in a combat zone (as
determined for purposes of section 112), and
(B) the spouse of such individual is otherwise entitled to
file a joint return for any taxable year which begins on or
before the day which is 2 years after the date designated under
section 112 as the date of termination of combatant activities
in such zone,
then such spouse may elect under subsection (a) to file a joint
return for such taxable year. With respect to service in the
combat zone designated for purposes of the Vietnam conflict, such
election may be made for any taxable year while an individual is
in missing status.
(2) Effect of election
If the spouse of an individual described in paragraph (1)(A)
elects to file a joint return under subsection (a) for a taxable
year, then, until such election is revoked -
(A) such election shall be valid even if such individual died
before the beginning of such year, and
(B) except for purposes of section 692 (relating to income
taxes of members of the Armed Forces, astronauts, and victims
of certain terrorist attacks on death), the income tax
liability of such individual, his spouse, and his estate shall
be determined as if he were alive throughout the taxable year.
(3) Missing status
For purposes of this subsection -
(A) Uniformed services
A member of a uniformed service (within the meaning of
section 101(3) of title 37 of the United States Code) is in a
missing status for any period for which he is entitled to pay
and allowances under section 552 of such title 37.
(B) Civilian employees
An employee (within the meaning of section 5561(2) of title 5
of the United States Code) is in a missing status for any
period for which he is entitled to pay and allowances under
section 5562 of such title 5.
(4) Making of election; revocation
An election described in this subsection with respect to any
taxable year may be made by filing a joint return in accordance
with subsection (a) and under such regulations as may be
prescribed by the Secretary. Such an election may be revoked by
either spouse on or before the due date (including extensions)
for such taxable year, and, in the case of an executor or
administrator, may be revoked by disaffirming as provided in the
last sentence of subsection (a)(3).
(g) Election to treat nonresident alien individual as resident of
the United States
(1) In general
A nonresident alien individual with respect to whom this
subsection is in effect for the taxable year shall be treated as
a resident of the United States -
(A) for purposes of chapter 1 for all of such taxable year,
and
(B) for purposes of chapter 24 (relating to wage withholding)
for payments of wages made during such taxable year.
(2) Individuals with respect to whom this subsection is in effect
This subsection shall be in effect with respect to any
individual who, at the close of the taxable year for which an
election under this subsection was made, was a nonresident alien
individual married to a citizen or resident of the United States,
if both of them made such election to have the benefits of this
subsection apply to them.
(3) Duration of election
An election under this subsection shall apply to the taxable
year for which made and to all subsequent taxable years until
terminated under paragraph (4) or (5); except that any such
election shall not apply for any taxable year if neither spouse
is a citizen or resident of the United States at any time during
such year.
(4) Termination of election
An election under this subsection shall terminate at the
earliest of the following times:
(A) Revocation by taxpayers
If either taxpayer revokes the election, as of the first
taxable year for which the last day prescribed by law for
filing the return of tax under chapter 1 has not yet occurred.
(B) Death
In the case of the death of either spouse, as of the
beginning of the first taxable year of the spouse who survives
following the taxable year in which such death occurred; except
that if the spouse who survives is a citizen or resident of the
United States who is a surviving spouse entitled to the
benefits of section 2, the time provided by this subparagraph
shall be as of the close of the last taxable year for which
such individual is entitled to the benefits of section 2.
(C) Legal separation
In the case of the legal separation of the couple under a
decree of divorce or of separate maintenance, as of the
beginning of the taxable year in which such legal separation
occurs.
(D) Termination by Secretary
At the time provided in paragraph (5).
(5) Termination by Secretary
The Secretary may terminate any election under this subsection
for any taxable year if he determines that either spouse has
failed -
(A) to keep such books and records,
(B) to grant such access to such books and records, or
(C) to supply such other information,
as may be reasonably necessary to ascertain the amount of
liability for taxes under chapter 1 of either spouse for such
taxable year.
(6) Only one election
If any election under this subsection for any two individuals
is terminated under paragraph (4) or (5) for any taxable year,
such two individuals shall be ineligible to make an election
under this subsection for any subsequent taxable year.
(h) Joint return, etc., for year in which nonresident alien becomes
resident of United States
(1) In general
If -
(A) any individual is a nonresident alien individual at the
beginning of any taxable year but is a resident of the United
States at the close of such taxable year,
(B) at the close of such taxable year, such individual is
married to a citizen or resident of the United States, and
(C) both individuals elect the benefits of this subsection at
the time and in the manner prescribed by the Secretary by
regulation,
then the individual referred to in subparagraph (A) shall be
treated as a resident of the United States for purposes of
chapter 1 for all of such taxable year, and for purposes of
chapter 24 (relating to wage withholding) for payments of wages
made during such taxable year.
(2) Only one election
If any election under this subsection applies for any 2
individuals for any taxable year, such 2 individuals shall be
ineligible to make an election under this subsection for any
subsequent taxable year.