Joint-filing election could not be changed after the filing deadline

Plain-English summary

Chief Counsel advised that after a valid joint return was filed and the filing deadline passed, one spouse could not change the filing status to head of household on an amended return. The joint-filing election was irrevocable under the cited regulation, assuming the original election was valid. The additional tax reported on the amended return was a valid assessment against the spouse who filed it, provided the assessment was made before the three-year assessment period based on the original joint return expired. Because that assessment was valid, the IRS lacked authority to abate it under § 6404(a); the advice also discussed when a notice of deficiency would be required for any additional amount.

Ruling snapshot

• Question: Could one spouse change a valid joint return to head-of-household status on an amended return, and was the resulting assessment valid?
• Outcome: Advice given, the filing-status change was unavailable and the timely assessment against the signing spouse was valid
• Key authorities: IRC §§ 6013, 6201, 6203, 6213, 6404, and 6501; Treas. Reg. § 1.6013-1(a)(1)

Full text (IRS public release)

       Office of Chief Counsel
       Internal Revenue Service
       memorandum
       Number: 201411017
       Release Date: 3/14/2014
       CC:PA:02:HMarx
       POSTF-124591-13

UILC: 6013.00-00

date: September 23, 2013

 to:   Heather K. McCluskey
       General Attorney (San Diego, Group 1)
       (Small Business/Self-Employed)

from: Charles A. Hall
Senior Technician Reviewer
(Procedure & Administration)

subject: Filing status change on an amended return

       This Chief Counsel Advice responds to your request for assistance. This advice may
       not be used or cited as precedent.


                                                          ISSUES

           1. Whether a spouse may change filing status to head of household on an amended
              return after a valid joint return has been filed and the time to file has expired.
           2. Whether an assessment of additional tax reported on an amended return that
              only one spouse signed and agreed to file is valid against either spouse, and if
              not, whether the assessment must be abated.
           3. ------------------------------------------------------------------------------------------------------------
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                                                           FACTS

       Taxpayers husband (“TPH”) and wife (“TPW”) filed a joint income tax return. Later, after
       the time for filing had expired, but before the end of the three-year assessment period
       provided by section 6501(a), TPH filed an amended income tax return reporting
       additional income tax due. TPH filed the amended return claiming head of household
       filing status. ---------------------------------------------------------------------------------------------------

POSTF-124591-13 2

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                                       LAW AND ANALYSIS

1. Whether a spouse may change filing status to head of household on an amended
   return after a valid election to file jointly was made on the original return and the
   time to file has expired.

The election to file a married filing jointly income tax return is irrevocable after the time
to file has expired. Treas. Reg. § 1.6013-1(a)(1); see also Ladden v. Commissioner, 38
T.C. 530, 534 (1962). TPH filed the amended return after the time for filing a return for
the tax years at issue had passed. Thus, assuming the election to file a joint return was
valid, TPH could not change filing status to head of household on the amended return.

2. Whether an assessment of additional tax reported on an amended return that
   only one spouse signed and agreed to file is valid against either spouse, and if
   not, whether the assessment must be abated.

Section 6201(a)(1) requires the Service to assess “all taxes determined by the taxpayer
... as to which returns … are made under this title.” TPH filed an amended return that
reported additional income tax due. As long as the assessment of additional tax
reported on the amended return was made before the expiration of the three-year
assessment period based on the original joint return, the assessment against TPH is
valid. Section 6404(a) allows the Service to abate the unpaid portion of an assessment
that is excessive, assessed after the limitation period, or is erroneously or illegally
assessed. Because the assessment based on the amended return was valid, the
Service lacks the authority to abate the assessment against TPH pursuant to section
6404(a).

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---------------------------------------------------. An assessment is made when an assessment
officer signs a summary record of assessment. This record, through supporting
records, must identify the taxpayer. I.R.C. § 6203; Treas. Reg. § 301.6203-1. The
summary record in a matter with these facts likely is a Form 23C (if it was prepared
manually), or a RACS-006. -------------------------------------------------------------------------------

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POSTF-124591-13 3

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3. ------------------------------------------------------------------------------------------------------------
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When there is a deficiency in tax, the Service must issue a notice of deficiency before
assessing that tax, unless an exception applies. I.R.C. § 6213. For a statutory notice of
deficiency to be valid, it simply must advise the taxpayer that the IRS has determined a
deficiency and provide the amount of the deficiency and the tax year at issue. Longino
v. Commissioner, T.C. Memo. 2013-80. In Scar v. Commissioner, the 9th Circuit held a
notice to be invalid because the Commissioner had not considered information that
related to the taxpayer. 814 F.2d 1363 (9th Cir. 1987). However, the 9th Circuit has
limited Scar to the facts of that case, specifically to those instances where the notice of
deficiency reveals on its face that the Commissioner failed to make a determination.
See Meserve Drilling Partners v. Commissioner, 152 F.3d 1181, 1183 n.3 (9th Cir.
1998).

----------------------------------------------------------------------------------------. Such a notice
would be valid; however, the assessment against TPH is already valid under section
6201(a)(1) because TPH filed an amended return that reported the additional income
tax due.

The amended return was filed only by TPH, with head of household filing status. To the
extent that the Service determines that TPH owes more tax than what was reported and
assessed based on the amended return (including the amount, if any, TPH is liable for
based on the proper filing status of married filing joint), the Service may issue a notice
POSTF-124591-13 4

of deficiency to TPH for that amount. ------------------------------------------------------------------

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