Discussion:Head of Household??

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Discussion Forum Index --> Advanced Tax Questions --> Head of Household??


Discussion Forum Index --> Tax Questions --> Head of Household??

Abctaxes (talk|edits) said:

15 April 2014
Man and women get married in 2013, 2nd marriage for each both have kids from previous marriage and each has been filing head of household. they live in seperate states and never move into together as of yet. Can they still be considered H of H? reading the instructions I don't see where they are disqualified?

Terry Oraha (talk|edits) said:

15 April 2014
yes if they meet all the requirements of §2(c) and §7703(b)

2(c)(c) married individuals living apart.

For purposes of this part, an individual shall be treated as not married at the close of the taxable year if such individual is so treated under the provisions of section 7703(b) .


7703(b)(b) Certain married individuals living apart.

For purposes of those provisions of this title which refer to this subsection, if—


7703(b)(1)(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 forsection 152(e)),


7703(b)(2)(2) such individual furnishes over one-half of the cost of maintaining such household during the taxable year, and


7703(b)(3)(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.

Nilodop (talk|edits) said:

15 April 2014
See 7703(b). Considered unmarried.

Ckenefick (talk|edits) said:

15 April 2014
The rule is partially a misnomer - The Abandoned Spouse Rule - seeing that, in not all cases has the HOH spouse been abandoned.

Tax Writer (talk|edits) said:

15 April 2014
Yes, two married persons with children can each qualify as HOH separately. I don't see any issues with them both being HOH if the situation is as you described.

Ckenefick (talk|edits) said:

15 April 2014
The real trick in these cases...actually, in similar cases...is for the married parents, who are separated and in the process of divorcing, to both qualify for HOH status. The parents are living apart and maintaining separate households, so that part is easy. The harder part is if we have two kids, for example, to split them up, physically, and use one kid to qualify mom for HOH and the use the other kid to qualify dad for HOH. This is tough when the kids are both young and "stay together" for custody purposes...but I *think* there is a way...

Frankly (talk|edits) said:

15 April 2014
As with most things, the "facts and circumstances" are what determine HOH. Mom and Dad can't exactly decide "you claim him and I'll claim his sister". The kid has to LIVE with the parent claiming to be head. But, I've heard rumors to the effect that sometimes they find a "way". Grrr...

Ckenefick (talk|edits) said:

15 April 2014
Mom and Dad can't exactly decide "you claim him and I'll claim his sister". The kid has to LIVE with the parent claiming to be head.

All very true...but how is that "LIVE with" part determined?

Frankly (talk|edits) said:

15 April 2014
Yes, like the kid that "lives" with his parents while "temporarily" absent, like away at school. What is a "school"? What is "temporary"? Or day care that runs overnight, or several nights.

Ckenefick (talk|edits) said:

15 April 2014
Not like that, but young kids...Parents get divorced on 1/1 with two young kids...custody is "joint," kids go together to mom's house and stay and ditto for dad's house. Don't we count the nights?

Death&Taxes (talk|edits) said:

15 April 2014
Let's take a look at Laurel Hopkins TCM 1992-326:

"Laurel Hopkins and her husband, William, had two children. Hopkins asserted that as of June 1987, when they decided to divorce, William no longer lived in the marital home, although she occasionally allowed him to sleep in the living room when he had no place else to stay. Hopkins paid all the household bills and was the sole provider for their two children. In August 1987, Hopkins moved out of the marital home because William would not leave, and in November she filed for divorce. On her 1987 tax return, Hopkins claimed “head of household” status and claimed a child care credit. The IRS disallowed the child care credit and determined that Hopkins was not entitled to “head of household” status.

Tax Court Special Trial Judge Nameroff has sustained the Service's determination. Judge Nameroff determine that Hopkins did not qualify for both the child care credit and “head of household” status because she did not prove that her husband was not a member of the household during the last six months of 1987. Judge Nameroff reasoned that Hopkins and her husband were not physically separated and living in separate residences for the full six months. Judge Nameroff held that Hopkins desire to be living apart from her husband, despite her inability to evict him from the marital home, was not enough to meet the requirement of physical separation."

So if the new couple spends time together getting acquainted, would this be the same as the Hopkins case.

Tax Writer (talk|edits) said:

16 April 2014
Judge Nameroff reasoned that Hopkins and her husband were not physically separated and living in separate residences for the full six months.

I understand this argument, but in the OP's case they are in two separate states, and their respective kids are both kids from a former marriage.

Reading the Hopkins case, it sounds like the husband was homeless. And in that case, wasn't EITC involved? The service seems to lather at the mouth when EITC is in the picture.

Joanmcq (talk|edits) said:

17 April 2014
But....did the couple in the two different states never visit each other? Every time they meet for 'marital relations' it's in a hotel halfway between the two residences? One night stay over by spouse in the final 6 months of the year disqualifies HOH.

Death&Taxes (talk|edits) said:

17 April 2014
Thank you, Joan....that is what I was trying to say, and with a literalist Tax Court (at times.....you may speak now, Mrs. Durden), these questions could arise.

Ckenefick (talk|edits) said:

17 April 2014
I don't buy the "one night stay over by spouse in the final 6 months of the year" necessarily disqualifies HOH. I don't think the Hopkins case stands for that proposition. The record was pretty clear, in Hopkins, that the husband didn't move out until August. The taxpayer's argument was that her husband remaining in the house was beyond her control:

In her petition to this Court she stated: "Because a condition existed (husband residing at same address for seven months of 1987) which I could not control, does not mean I was not head of household." Additionally, in a letter to an Internal Revenue Service agent, petitioner wrote: "I had a husband that I couldn't get rid of living in my home. Because he would not move out, I had to move to get away from him."

I do think that if one spouse picks up his stuff and moves out on 7/1, we have a problem. But if that spouse in reality "moved out" well before that, and established his own residence and household before that, and merely stays the night on 9/7, that shouldn't cause HOH status to be lost.

From Washington, citing the legislative history:

We respectfully disagree with the Court of Appeals for the Eighth Circuit. It is our view Congress intended that a husband and wife should not be treated as "separated and living apart" when both are living under the same roof. See H. Rept. 1337, 83d Cong., 2d Sess., 9-10 (1954); S. Rept. 1622, 83d Cong., 2d Sess., 10-11 (1954).

First, the facts in Washington were such that both spouses lived in the same "house," but occupied different areas of the home. The court laid out the floor plan of the house:

The residence was a 2 1/2-story house consisting of a basement, first floor, and second floor. On the first floor there were a center entrance, a center hallway, and a center staircase. On the right side of the center hallway, there were a living room and a den which together extended the full length of the house. On the left side of the center hallway, there were [pg. 603]a kitchen, breakfast nook, dining room, and a lavatory. On the second floor, there were a master bedroom and sitting room with two master closets, on the right side. On the left side, there were two bedrooms and a bath. In the basement there were a recreation room, a darkroom, and a laundry room in which there were a stove, a refrigerator, and a deep freeze. The residence contained 1,863 square feet of living space.

Petitioner and Jean had not lived together as husband and wife since 1971. They occupied separate bedrooms, used separate bathrooms, prepared meals at different places (Jean in the first floor kitchen, petitioner on the facilities in the laundry room in the basement), did not eat together, and did not converse with each other.

Second, a key word is "living" as in "living apart" or "living together." I think it's a very big stretch to conclude that a single night stay by a husband, say, at the wife's house would constitute "living together." When my kid has a slumber party, I'm hardpressed to believe that anyone would view the party goers as "living" at the Kenefick's house.

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