IRS says temporary work-related spousal absence prevents head-of-household status

Plain-English summary

Chief Counsel Advice addressed whether a married taxpayer could file as head of household while the taxpayer's spouse lived apart because of employment. The spouses were not legally separated and did not intend to live apart permanently. The advice explains that a spouse's work-related absence is a temporary absence under the regulation, so the spouse remains a member of the household. Even if the taxpayer otherwise meets the child, household-cost, and other statutory requirements, the taxpayer is not eligible for head-of-household filing status on these facts.

Ruling snapshot

• Question: Can a married taxpayer file as head of household when the spouse is temporarily away for work?
• Outcome: Advice given, the taxpayer cannot qualify because the spouse's absence is temporary.
• Key authorities: IRC §§ 2(b), 151, 152, and 7703; Treas. Reg. § 1.7703-1.

Full text (IRS public release)

ID: CCA_2013080616220846
Office: -----------------------------
UILC: 2.03-00, 7703.02-00
Number: 201334041
Release Date: 8/23/2013
From: --------------------
Sent: Tuesday, August 06, 2013 4:22:09 PM
To: ------------------
Cc: ----------------
Subject: Question about Head of Household filing status -- ----------------------

You asked us whether a married taxpayer can file a tax return as a head of a household for years during
which the taxpayer’s spouse was living apart from the taxpayer due to the spouse’s employment
situation. The taxpayer and the taxpayer’s spouse were never legally separated and did not intend to live
apart permanently.

For purposes of Subtitle A of the Internal Revenue Code, an individual shall be considered a head of a
household only if such individual is unmarried at the close of taxable year, is not a surviving spouse, and
satisfies requirements under § 2(b). In determining whether a person is unmarried, § 7703(b) provides
that individuals who are married will be considered unmarried if all of the following conditions are met:

            (1) An individual who is married (within the meaning of subsection (a)) and who files a
            separate return maintains as his home a household which constitutes for more than one-
            half of the taxable year the principal place of abode of a child (within the meaning of
            section 152(f)(1)) with respect to whom such individual is entitled to a deduction for the
            taxable year under section 151 (or would be so entitled but for section 152(e));


            (2) Such individual furnishes over one-half of the cost of maintaining such household
            during the taxable year; and

            (3)   During the last 6 months of the taxable year, such individual's spouse is not a
            member of such household.

As to condition (3), Treas. Reg. § 1.7703-1(b)(5) provides, in part:

     An individual's spouse will be considered to be a member of the household during temporary
     absences from the household due to special circumstances. A nonpermanent failure to occupy
     such household as his abode by reason of illness, education, business, vacation, or military
     service shall be considered a mere temporary absence due to special circumstances.

Accordingly, even if the taxpayer is not a surviving spouse, meets the requirements under § 2(b) and §§
7703(b)(1) and (2), if the taxpayer’s spouse was away by reason of business and planned to share a
common household with the taxpayer in the future, the taxpayer cannot be considered a head of a
household. In such cases, the spouse’s absence from the household is considered a mere temporary
absence due to special circumstances, and the taxpayer is not eligible to file as head of household.
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If you have any more questions, please let me know.

Regards,

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