CCA 201049030: A taxpayer may elect joint status after a substitute-for-return filing

Plain-English summary

Chief Counsel Advice considers whether a taxpayer may elect joint filing status after the IRS has prepared a substitute for return under IRC § 6020(b) and issued a notice of deficiency. Relying on Millsap v. Commissioner, the advice concludes that an IRS-prepared substitute for return is not a separate return filed by the individual for purposes of IRC § 6013(b). Because the taxpayer had not previously filed a separate return, the advice states that § 6013(b) does not prevent a joint return, provided no exception in § 6013(a) applies. For the stated facts involving a deceased spouse, a joint return may be filed if no executor or administrator was appointed by the applicable deadline.

Ruling snapshot

• Question: May a taxpayer elect joint filing status after the IRS files a substitute for return and issues a notice of deficiency?
• Outcome: advice given
• Key authorities: IRC §§ 6013(a)(2), 6013(b), and 6020(b); Millsap v. Commissioner, 91 T.C. 926 (1998).

Full text (IRS public release)

ID: CCA_2010102510251264 Number: 201049030
Release Date: 12/10/2010
Office: --------------
UILC: 6013.02-00

From: -----------------
Sent: Monday, October 25, 2010 10:25:19 AM
To: -----------------
Cc: ------------------
Subject: Filing joint return after filing of substitute for return

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You asked whether a taxpayer can elect joint status after the Service has filed a substitute for return under section 6020(b) and has issued a notice of deficiency to the taxpayer. The Tax Court held in Millsap v. Commissioner, 91 T.C. 926, 936-937 (1998), acq. in result, AOD-1992-03, that a taxpayer is not foreclosed from electing joint status after the Service has prepared a return under section 6020(b) because the return does not constitute a "separate return" filed by the individual for purposes of section 6013(b). Because the taxpayer has not previously filed a separate return in this case, section 6013(b) does not apply, therefore, the taxpayer may file a joint return provided that none of the exceptions in section 6013(a) apply.

Section 6013(a)(2) states that "in the case of death of one spouse the joint return may be made by the surviving spouse . . . 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." The facts that you provided did not state whether an executor or administrator had been appointed. Thus, if an executor or administrator was not appointed, the taxpayer may file a joint return with respect to himself and his deceased spouse. See IRC section 6013(a)(2).

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