26 USC 6013 - Joint returns of income tax by husband and wife

U.S Code last checked for updates: Nov 22, 2024

§ 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

(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

(4)

Additional time for assessment

(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

(c)

Treatment of joint return after death of either spouse

(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, § 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

(B)

Civilian employees

(4)

Making of election; revocation

(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

(3)

Duration of election

(4)

Termination of election

An election under this subsection shall terminate at the earliest of the following times:

(A)

Revocation by taxpayers

(B)

Death

(C)

Legal separation

(D)

Termination by Secretary

(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

(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

(Aug. 16, 1954, ch. 736, 68A Stat. 733; Pub. L. 85–866, title I, § 73, Sept. 2, 1958, 72 Stat. 1660; Pub. L. 91–172, title VIII, § 801(a)(2), (b)(2), (c)(2), (d)(2), Dec. 30, 1969, 83 Stat. 675, 676; Pub. L. 91–679, § 1, Jan. 12, 1971, 84 Stat. 2063; Pub. L. 92–178, title II, § 201(a)(2), (b)(2), (c), Dec. 10, 1971, 85 Stat. 510, 511; Pub. L. 93–597, § 3(a), Jan. 2, 1975, 88 Stat. 1950; Pub. L. 94–455, title X, § 1012(a)(1), title XIX, § 1906(a)(1), (b)(13)(A), Oct. 4, 1976, 90 Stat. 1612, 1824, 1834; Pub. L. 94–569, § 3(d), Oct. 20, 1976, 90 Stat. 2699; Pub. L. 95–600, title I, § 102(b)(2), title VII, § 701(u)(15)(A)–(C), (16)(A), Nov. 6, 1978, 92 Stat. 2771, 2919, 2920; Pub. L. 97–34, title I, § 104(d)(2), Aug. 13, 1981, 95 Stat. 189; Pub. L. 97–248, title III, §§ 307(a)(4), (5), 308(a), Sept. 3, 1982, 96 Stat. 589, 591; Pub. L. 97–448, title III, § 307(c), Jan. 12, 1983, 96 Stat. 2407; Pub. L. 98–67, title I, § 102(a), Aug. 5, 1983, 97 Stat. 369; Pub. L. 98–369, div. A, title IV, §§ 424(a), 474(b)(2), July 18, 1984, 98 Stat. 801, 830; Pub. L. 99–514, title I, § 104(a)(2), title XVII, § 1708(a)(3), Oct. 22, 1986, 100 Stat. 2104, 2782; Pub. L. 100–647, title I, § 1015(b)(1), Nov. 10, 1988, 102 Stat. 3568; Pub. L. 101–239, title VII, § 7721(c)(6), Dec. 19, 1989, 103 Stat. 2399; Pub. L. 101–508, title XI, § 11704(a)(22), Nov. 5, 1990, 104 Stat. 1388–519; Pub. L. 104–168, title IV, § 402(a), July 30, 1996, 110 Stat. 1459; Pub. L. 105–206, title III, § 3201(e)(1), title VI, § 6011(e)(2), July 22, 1998, 112 Stat. 740, 818; Pub. L. 107–134, title I, § 101(b)(2), Jan. 23, 2002, 115 Stat. 2428; Pub. L. 108–121, title I, § 110(a)(2)(B), Nov. 11, 2003, 117 Stat. 1342.)

cite as: 26 USC 6013