Can my wife and I both claim Head of Household?

[Stuckbutter]

As I've only heard conflicting answers to this question from a multitude tax of professionals, I want to clarify one more time:

I have been married since 2017. My wife and I DO NOT live together, nor have we ever. We do not share children or finances, and we both have children of our own, in which we can claim as dependents. Can we both claim HoH, because of these factors? The IRS publication appears to consider you unmarried as of December 31st, if these factors are met. The Intuit site here also has the same guidelines. This is somewhat of an unorthodox situation, so I would love clarification. Thank you in advance!

[DoninGA]

If you have not lived in the same household for the last six months of the year then for tax purposes you would be considered Unmarried.  If you both maintain separate households, both provide over one-half the cost to maintain each household and each have a qualifying person as a dependent (your child).  Then you both could have Head of Household filing status.

[SweetieJean]

Did you spend at least one night together during the latter half of 2017?

[macuser_22]

The IRS publications say "Your spouse didn't live in your home during the last 6 months of the tax year.".   It depends on how "live" is interpreted.  Usually that means more than an occasional visit, like when going on vacation, you stay in a hotel, you don't live there.

Considered Unmarried

To qualify for head of household status, you must be either unmarried or considered unmarried on the last day of the year. You are considered unmarried on the last day of the tax year if you meet all the following tests.

   1) You file a separate return. A separate return includes a return claiming married filing separately, single, or head of household filing status.

   2) You paid more than half of the cost of keeping up your home for the tax year.

   3) Your spouse didn't live in your home during the last 6 months of the tax year. Your spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances. See Temporary absences under Qualifying Person, later.

  4)  Your home was the main home of your child, stepchild, or foster child for more than half the year. (See Home of qualifying person under Qualifying Person, later, for rules applying to a child's birth, death, or temporary absence during the year.)

   5) You must be able to claim an exemption for the child. However, you meet this test if you can’t claim the exemption only because the noncustodial parent can claim the child using the rules described in Children of divorced or separated parents (or parents who live apart) under Qualifying Child in chapter 3, or referred to in Support Test for Children of Divorced or Separated Parents (or Parents Who Live Apart) under Qualifying Relative in chapter 3. The general rules for claiming an exemption for a dependent are explained under Exemptions for Dependents in chapter 3.

<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17#en_US_2017_publink1000170797">https://www.irs.gov/publications/...>

[Stuckbutter]

We don’t live together. Never have.

[macuser_22]

My reading of the law (and I am not a lawyer) Is your spouse cannot be a "member of your household" during the last 6 months of the tax year.  To me, being a member of a household is much more involved than just a short stay.  
I think you are on safe grounds.

The actual tax code put it this way:
<a rel="nofollow" target="_blank" href="https://www.law.cornell.edu/uscode/text/26/7703">https://www.law.cornell.edu/uscode/text/26/7703</a>

(b) Certain married individuals living apartFor purposes of those provisions of this title which refer to this subsection, if—

(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,
such individual shall not be considered as married.

[SweetieJean]

I tend to agree, although I've seen a couple of Tax Court cases that say otherwise.

[macuser_22]

References? I would like to read them.

[VolvoGirl]

One thing I don't see mentioned is why don't you file Joint?  You can file Joint federal and separate state returns (if you live in different states).  Joint might even be better than Head of Household.

[SweetieJean]

Good point!

[SweetieJean]

Also see:
<a rel="nofollow" target="_blank" href="https://www.thebalance.com/community-property-rules-for-federal-income-tax-returns-3192849">https://...>

[SweetieJean]

https://www.accountingweb.com/tax/irs/when-should-married-couples-check-married-filing-separately

[SweetieJean]

and see these answers by TT Tax Pros:
<a rel="nofollow" target="_blank" href="https://ttlc.intuit.com/questions/2971035-in-2015-i-got-married-on-decemeber-15-2015-now-i-have-neve...>

[macuser_22]

I see nothing in the tax law that says "one night" the tax law says a "member of household".  A temporary guest is not a member of a household.

[SweetieJean]

<a rel="nofollow" target="_blank" href="https://finance.zacks.com/can-married-woman-head-household-irs-6373.html">https://finance.zacks.com/...>