CCA 201107020: Surviving spouse cannot extend a deceased spouse's assessment period without authority

Plain-English summary

Chief Counsel addressed how a surviving spouse should complete Form 872 after spouses filed a joint return and the husband later died. The IRS advice says both spouses' names should appear on the form because the original return was joint. The surviving spouse should sign only her own name, but without authority to act for the husband or his estate, she cannot sign Form 872 to extend the assessment period for his liability. The advice cites IRC § 6013(a)(3), Estate of Weisel v. Commissioner, and Rev. Rul. 83-41.

Ruling snapshot

• Question: Whose names should appear on Form 872, and who may sign it, after a spouse who filed a joint return dies?
• Outcome: Advice given.
• Key authorities: IRC §§ 6013(a)(3) and 6501; Estate of Weisel v. Commissioner, T.C. Memo. 1990-351; Rev. Rul. 83-41.

Full text (IRS public release)

ID: CCA_2011011416210316 Number: 201107020
Release Date: 2/18/2011
Office: --------------
UILC: 6501.08-11

From: ----------------------
Sent: Friday, January 14, 2011 4:21:05 PM
To: ------------------
Cc: ------------------
Subject: RE: Form 872 Advice

You asked for our assistance in answering two questions involving the following facts. Taxpayers, Husband and Wife timely filed a joint ------- Federal Tax Return, Form 1040. Husband died on -------------. Because ------------- is a community property state with right of survivorship, no estate was created on the date of Husband’s death. Rather, all property passed to Wife outside of probate. Wife filed an amended return (Form 1040X) by signing her name and typing on the line where the spouse would normally sign his name - "Filing as Surviving Spouse."

We doubt whether the Service should accept the amended return as filed by Wife. In general, a surviving spouse may file a joint return on behalf of herself and the decedent only when no administrator or executor has been appointed (and none is appointed before the last day prescribed by law for filing the return of the surviving spouse), but only if no return for the taxable year has been made by the decedent. I.R.C. § 6013(a)(3). Based on the facts you provided, Husband already made a return—the joint return with Wife. Absent any authority to act on behalf of Husband, Wife may not file an amended joint return.

Regardless, the Service now wants to solicit Form 872 to extend the assessment statute.

Issue 1: what name(s) should be on the Name line of page 1 of the Form 872?

Answer 1: The names of both Husband and Wife should appear on the Name line of page 1 on Form 872 since the couple filed a joint return for the year at issue.

Issue 2: how should the surviving spouse sign page 2 of the Form 872?

Answer 2: The surviving spouse should sign her name only on Form 872. Without authority to act on behalf of Husband (or Husband’s estate), however, Wife may not sign Form 872 to extend the assessment statute against Husband. See Estate of Weisel v. Commissioner, T.C. Memo. 1990-351; see also Rev. Rul. 83-41. Based on the facts you provided, Husband did not give Wife this authority in a will or other declaration (e.g., Form 2848, Power of Attorney). We are also not aware of any local law that would give Wife this authority.

Please contact me if you have any other questions.

Thanks,

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