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Discussion:HOH & MFS

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Discussion Forum Index --> Advanced Tax Questions --> HOH & MFS


Discussion Forum Index --> Tax Questions --> HOH & MFS

Sgklein (talk|edits) said:

April 13, 2012
Taxpayers have been separated for over two years...he is in the main home and she is in an apartment. They have 2 children. If he files as HOH and itemizes, does she file MFS with itemizing or can she take the standard?

Could they both qualify as HOH if each could claim one child? I will check to see if that is the case, though I believe he has both kids, but I am personally curious if that could apply. And if they both claimed HOH, then they could each elect whether to itemize or use standard?

I've looked at several discussions that say if the MFS chooses to itemize, the HOH can use the standard. If the HOH itemizes, can the MFS use the standard?

Ckenefick (talk|edits) said:

13 April 2012
If one itemizes, so must the other.

Could they both qualify as HOH if each could claim one child? I will check to see if that is the case, though I believe he has both kids, but I am personally curious if that could apply.

Yes, HOH could apply. In order to make it work, each spouse has to maintain a household for a child for more than 6-months out of the year. If one spouse lives with one child all year, and the other spouse lives with the other child all year, then it's a slam dunk...but this is rarely the case. Generally, all kids stay together, no matter where they go. Nevertheless, it can still be worked. These HOH (and dependency) cases often come down to counting nights.

Assume exactly equal custody (in terms of nights), and assume kids stay together, wherever they go - to mom or dad's house - except for the last week (or some other week) of the year. Then, with respect to this one "different" week, one kid stays with mom that last week and one kid stays with dad that last week.

365 (non-leap-year) minus 7 = 358.

Assuming an equal split, each spouse has both kids for 179 nights. Son stays with dad for the 7 nights with respect to the one "different" week. Dad now has 186 days with son (but is short with daughter). Daughter stays with mom for those 7 nights associated with that one "different" week. Mom now has 186 days with daughter (but is short with son).

186 is more than 1/2 of 365.

SCCPA (talk|edits) said:

13 April 2012
If one itemizes, so must the other.

That's true in this particular post, but I don't believe that it is a complete rule for HOH filers, i.e.

If she itemizes, he must itemize.

If he itemizes, she can still claim the standard deduction. The reason is that the statute contorts the situation where he is married to her (that's while he's filing MFS), but she's not considered as married to him (e.g., to file HOH she is "considered single."_

Ckenefick (talk|edits) said:

13 April 2012
If one itemizes, so must the other.

Right, was referring to this post.

As to other scenarios, see Chief Counsel Advice 200030023.

Fsteincpa (talk|edits) said:

13 April 2012
If one is HOH, the other can do as they wish. There are other discussions on that aspect.

Sgklein (talk|edits) said:

April 13, 2012
If he files HOH, then he is going to itemize since he pays all the bills on the house. She really doesn't have much to itemize. If she files MFS with a standard deduction, then he would have to use standard.

Chief Counsel Advice 200030023 This right of a taxpayer to elect to itemize deductions or use the standard deduction is generally limited by § 63(c)(6)(A). This limitation provides that a married individual filing a separate return where either spouse itemizes deductions shall have a standard deduction of zero. So this limitation then applies to taxpayers who are married individuals filing separate returns under § 1(d), but does not apply to a spouse who qualifies for and files as head of household because the spouse with head of household status is not considered a married individual under § 7703(b). Therefore, the spouse who filed head of household may use the full standard deduction and is not limited under § 63(c)(6)(A) by the other spouse’s election to itemize deductions. Also, if the head of household spouse elects to itemize deductions, then the general limitation of § 63(c)(6)(A) continues to apply to the other spouse because the other spouse is a married individual filing a separate return.

Thanks for the information.

EZTAX (talk|edits) said:

14 April 2012
"If she files MFS with a standard deduction, then he would have to use standard."

no

the person filing hh can do what he/she wants. the person filing mfs must itemize if spouse itemizes.

Fsteincpa (talk|edits) said:

14 April 2012
I guess I was wrong if I'm reading this right. There was a huge discussion before on this when I asked about it and from what I got out of that one was what I wrote above. Will revisit on 18th. Wow. lol

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