In your CPA practice, you may find this problem arise with either spouse. It is most likely to come up while a couple is going through a divorce, but not always. The simple answer to the question “Can my spouse file a tax return without my permission?” is “not if you are filing a joint return.” If filing separately or as head of household, the other spouse’s signature is not needed, so no permission is required.
According to IRS rules, a couple is still considered married for filing purposes if they are legally married as of December 31 of the tax year. If a husband signs his wife’s name or files electronically for her without her permission or consent, he must supply proof that he has legal power of attorney. Otherwise, he has committed a crime and can be charged with forgery, tax fraud, and identity theft, and could see significant fines or jail time.
If your clients choose “married filing separately” as their filing option, each spouse signs his or her own return. No permission is needed from the other spouse to file a return. However, they must know how each other is going to file. If one spouse chooses to itemize, the other must also itemize, even if the standard deduction would be a financially beneficial choice for that spouse. Therefore, if possible, try to work with both spouses to determine the best financial outcome for them.
- Filing as Head of Household offers a larger standard deduction than filing separately, but the taxpayer must fulfill all of the following conditions:
- The taxpayer has at least one child living at home
- The taxpayer must have lived separately from the spouse for the last 6 months of the tax year (July to December) – this does not include separation due to work, military service, education, medical care, or other special circumstance
- The spouses file separately
- The taxpayer has paid more than half the costs of maintaining the home during the tax year
If all of these conditions are met, your client is considered “unmarried” for the tax year and can file as Head of Household without the spouse’s permission. Again, however, the other spouse needs to know this in order to file properly.
One more possible situation that may arise is the death of a spouse. In such a situation, your client can still choose to use the “married filing jointly” option in the year of death. The surviving spouse must inform the Social Security Administration (SSA) of the date of death of the spouse. The 1040 Form must indicate the deceased party and date of death. The IRS will confirm the information with the SSA.