Figured out that an accountant filed me and my fiance as joint married in 2012 - we co-own a home together. We were not married. Should I amend?

[rilexa6259]

I also learned in 2015 that filing separately is more beneficial. During tax years 2012-2014 we were also filed jointly.  Is it worth the trouble to amend these years as well?

[macuser_22 · Accepted solution]

Filing a joint return when not married is a fraudulent tax return and amounts to tax fraud or tax evasion - a Federal felony.

You need to remedy that, but you cannot do it by amending, since amending a Joint return is not allowed after the due date of the return.

Those past returns need to be nullified by the IRS as false returns and replaced with accurate Single returns and the back tax paid.

This is not a do-it-your-self procedure since criminal penalties can be involved.

In my opinion, I recommend that you consult with a tax attorney who can legally represent you before the IRS.

[rjs]

Yes, you should amend the incorrect joint returns. Your situation is an exception to the general rule that you cannot amend from joint to separate returns after the due date of the return. Your joint returns are what is called an "invalid joint election" because you were not legally married.

This is a very uncommon situation, and it's a very obscure part of the tax rules. I don't think you necessarily need a lawyer, but I recommend that you have a tax professional prepare your amended returns with the attachments that the IRS requires. You probably won't find a tax pro who is familiar with this particular situation - it doesn't come up very often - but look for someone who has experience dealing with the IRS in unusual cases. You can tell the tax pro to refer to IRM 21.6.1.4.7, which is the section of the Internal Revenue Manual that covers an invalid joint election. When you meet with the tax pro, bring copies of your original joint tax returns.

To get your amended returns accepted, changing the filing status from joint to single, you have to first of all clearly state that the original return was an "invalid joint election," and explain the circumstances. Since this is such a rare situation, I would also suggest that you reference IRM 21.6.1.4.7. The tax pro will know how to word the explanation. IRS procedures require two things in order to accept the change of filing status.

1. Documents verifying that you were not married as of December 31 of the year in question.

2. An allocation of all "income, credits, and payments" on the joint return. "Allocation means the taxpayer must designate/show which wages, deductions, withholding, EITC, tax liability, etc., belong to each taxpayer." Here's where you really need a tax pro. There are very detailed rules in the Internal Revenue Manual about how to do the allocation (IRM 21.6.1.4.8).

This is not something that's covered in normal IRS instructions or publications. If you want to look at the applicable sections of the Internal Revenue Manual yourself, go to the following link, then scroll down to 21.6.1.4.7 and 21.6.1.4.8. The Internal Revenue Manual is the manual of procedures followed by IRS employees. It's written for them, not for taxpayers, so it is addressed to them and assumes a level of knowledge that they have from their training.

https://www.irs.gov/irm/part21/irm_21-006-001r.html#d0e234