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Discussion:Married - NOT!

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Discussion Forum Index --> Basic Tax Questions --> Married - NOT!


Discussion Forum Index --> Tax Questions --> Married - NOT!

Waynecpa (talk|edits) said:

15 January 2009
New clients have been married for 11 years, had kids, bought a house, wife changed name with SSA, but last week they found out that the minister was on the Most Wanted list and was not authorized to perform a marriage ceremony. Their lawyer says they were not legally married for the 11 years and the wife needs to change her name back. Since this isn't a common law marriage state, would the clients have to amend returns to head of household and single for open years?

Kevinh5 (talk|edits) said:

15 January 2009
don't forget all of those charitable contributions to their minister's 'church'

Trillium (talk|edits) said:

15 January 2009
Seems like we had a similar discussion here in the past, and a key point was that if they got a license and it was registered approriately, the new-found status of the minister may not be the problem you'd think. But, this one is the closest I can find to that: Thought they were married, and that's not in there. Maybe it'll help you anyway.

JR1 (talk|edits) said:

January 15, 2009
Yeah, puhleeze. These things have happened before, but I don't recall it ever nullifying a marriage. Get real. Let's say their attorney is correct. Eleven years. All those marriages, now void. That's a lot of amended returns. Worse, let's talk about estates, ownership of real estate, life insurance, health insurance...and unwinding ALL transactions.

Get the point? Her attorney is a goof.

Solomon (talk|edits) said:

15 January 2009
"Her attorney is a goof. " - and ambulance chaser.

Kevinh5 (talk|edits) said:

15 January 2009
at least we know he is not a divorce lawyer.

Laticiaw (talk|edits) said:

15 January 2009
Wouldn't lay any bets on that one Kevin

Death&Taxes (talk|edits) said:

15 January 2009
The lawyer is angling to write a pre-nup.

Laticiaw (talk|edits) said:

15 January 2009
Read the other discussion posted by Trillium and have to say that at some points I was laughing pretty hard...but most people do not check that information...also I didn't realize that common law marraige was not recognized in my home state...interesting.

Riley2 (talk|edits) said:

15 January 2009
This is a matter of state law. If this were a California couple, amended returns would probably be indicated.

However, in this case, there may be no need to file amended returns.

There was a recent Tax Court Summary Opinion indicating that Washington state law may allow for marital status if two co-habitating individuals hold themselves out as a married couple. See Eng G. Kang, et al. v. Commissioner, TC Summary Opinion 2001-97.

IDrinkYourMilkshake (talk|edits) said:

15 January 2009
Riley, it is a matter of state law. However, didn't the state recognize the marriage during those years? If it did become void, I would think that would only come into play in the current year. Also, I agree, the lawyer seems.... well... inexperienced.

IDrinkYourMilkshake (talk|edits) said:

15 January 2009
Riley, it is a matter of state law. However, didn't the state recognize the marriage during those years? If it did become void, I would think that would only come into play in the current year. Also, I agree, the lawyer seems.... well... inexperienced.

NMexEA (talk|edits) said:

16 January 2009
IDrink,

Just off the cuff, I kinda think that you are right. I'd have to research it (which I won't, having more pressing stuff to do) but I think that everyone is pretty well "estopped" from questioning the validity of the "marriage" having relied upon it until now.

Something a little like this happened on a truly grand scale right after the Civil War. "Reconstructed" states like Texas followed the federal line and repudiated, declared void, all legislative, judicial, executive, and administrative acts of their governments taken by state officials during the Rebellion. (It was Pres. Lincoln's theory that secession was completely imposssible so all the state offices became vacant as a matter of law.)

But what about all those marriages and divorces through four long years of war? Not to mention all of the other routine civil lawsuits. You can't really "unwind" affairs like that. So as a practical matter, every act that was "complete" was left alone.

Now a question for the tax experts...wouldn't the usual three years statute of limitations apply to all those tax returns?

AEM CPA (talk|edits) said:

16 January 2009
I would think that, regardless of whether the minister had the authority to conduct a marriage ceremony, the State's issuance of a certificate of marriage would be sufficient. The couple had their marriage ceremony conducted in good faith (faith in what, I don't know - get married in the church and this isn't an issue), and the State issued a certificate by its own authority. I don't see the problem.

Riley2 (talk|edits) said:

16 January 2009
I gave the answer for a resident of Washington; however, in other states, it would be proper to file amended returns if the person conducting the ceremony had no authority to solemnize the marriage. See SCA 200202001.

For example, a marriage ceremony conducted in California by a phony minister results in an invalid marriage.

Waynecpa (talk|edits) said:

16 January 2009
Update - now it appears that the wife doesn't really want to be married. She says that her husband has a business and has been taking care of the taxes on his own. An accountant in town has filed extensions the last three years but hasn't completed the returns. It seems she wants to file on her own but I'm not sure she has income. We'll see if she makes an appointment.

Also, in a Washington case, Weatherall v. Weatherall, the court held that a marriage which had been performed by an Indian chief who believed himself to have the authority to perform marriages was not void. In reaching this conclusion the court, basically, manifested an attitude of attaching considerably more importance to the legal capacity and intent to enter into a marriage contract on the part of the man and woman involved than to the formalities of the marriage ceremony including the identity or status of the person solemnizing the marriage.

Just as an interesting side note, I just finished reading the book "1635: The Dreeson Incident" by Eric Flint. This book was set in Germany in the 1600s and supposedly the vows between two individuals resulted in a legal marriage that was later formalized by a church wedding...

Mscash (talk|edits) said:

16 January 2009
There minister probably had an ordination by mail from the Universal Life Church. Here in California Quakers can be married following their own rules which are an exchange of vows between the couple in front of witnesses. If you are going to let Quakers do it, why discriminate against others. From a practical point of view what is the difference between an officiant asking the couple "Do you take this man/woman...?" and the couple saying "I take you..."

My even money bet is on there being a valid marriage and if I was their attorney I would recommend a valid dissolution or annulment if for no other reason to make sure nothing came back to bite them later.

Riley2 (talk|edits) said:

16 January 2009
Washington follows a "public policy" doctrine.

Quoting from the Kang decision, "Under Washington law, the burden of proof is upon the party alleging the existence of a marriage. In this case, the burden falls on respondent. On the other hand, there is such a strong public policy in favor of marriage that the law seizes upon all presumptions in order to repel the conclusion of unmarried cohabitation. See Thomas v. Thomas, 53 Wash. 297, 101 P. 865 (1909); Goldwater v. Burnside, 22 Wash. 215, 219, 60 P. 490 (1900). Such presumptions of marriage may be overcome only by the weight of clear, cogent, and convincing evidence. 5 See In re Sloan's Estate, 50 Wash. 86, 88-89, 96 P. 684 (1908."

Riley2 (talk|edits) said:

17 January 2009
Mcash, in California, members of a religious sect that has no clergy are exempt from the solemnization requirement. California Family Code Sec. 307. However, be assured that the rest of us, in order to have a valid marriage, must comply with the solemnization requirement.

Yes, Quakers, having no clergy, are exempt from the solemnization requirement.

Waynecpa (talk|edits) said:

22 November 2010
Update: I did some returns (MFS) for this client and the IRS kept her refunds to apply to past MFJ returns. We also filed a request for Innocent Spouse relief for her. There are many issues between her husband and the IRS and I believe CID has an active case with him. The wife has filed a "Declaration of Validity" for the marriage to be considered invalid. The court said it has jurisdiction to enter a declaration of invalidity and did so.

The IRS has denied her innocent spouse relief and we intend to appeal this judgment.

DZCPA (talk|edits) said:

23 November 2010
Would I be considered a Virgin if I find out 20 years later that my ex wife was a Man??

Tax Writer (talk|edits) said:

23 November 2010
Wayne, if the marriage was invalid, then this taxpayer should amend all her prior year tax returns to "Single" filing status. It should be treated exactly like an annulment. The tax law is pretty clear that an invalid marraige means amended returns-- sounds like tha's a better circumstance for the client anyway. Attach the court paperwork and you'll be good to go. That's what I would do.

Mscash (talk|edits) said:

23 November 2010
In my state, California while a marriage can be conducted by a minister of the gospel, judge or other authorized official, Quakers are allowed to marry using their own rules. In a "conventional" wedding ceremony the minister says "Do you take this woman to be your wife?" (Response, "Yes") then "Do you take this man to be your husband?" (Response, "Yes".) "OK, kiss each other and then we can have some cake." plus a bit of elaboration that nobody listens to. In a Quaker ceremony they just cut out the middleman, make their promises to each other before witnesses and there is an extra piece cake for everybody else. My point here is that the minister may not be neccessary. If both parties and witnesses have signed off on the marrige license you probably have a binding civil contract. If they want a religious blessing, they should go to a trusted minister for a ceremony reaffirming their vows and don't make any changes to their old tax returns.

Tax Writer (talk|edits) said:

23 November 2010
The IRS has denied her innocent spouse relief and we intend to appeal this judgment.

I would also add that the argument for innocent spouse becomes moot once a judge invalidates a marriage. The judge has given a solution to your client on a silver platter.

"If you obtain a court decree of annulment, which holds that no valid marriage ever existed, you are considered unmarried even if you filed joint returns for earlier years. You must file amended returns (Form 1040X) claiming single or head of household status for all tax years affected by the annulment that are not closed by the statute of limitations for filing a tax return. The statute of limitations generally does not end until 3 years after your original return was filed." Pub 501

I would go back and amend as far as you need to in order to abate her joint tax liability.

Tpasco (talk|edits) said:

24 November 2010
A friend of mine has a saying which I think applies here: If you think you're a virgin, you are.

AEM CPA (talk|edits) said:

24 November 2010
That's a pretty good rule of thumb. Not so, however, with its inverse.

Szptax (talk|edits) said:

24 November 2010
don't forget the "Head of Household" status rather than single if amending

Waynecpa (talk|edits) said:

24 November 2010
I will amend the open years I have based on Publication 501. At first I was kind of excited because I thought that she may get earned income credit for these years, but since the children are qualifying children of both and her "husband" (boyfriend?) made more money in these years (even though he hasn't filed taxes), she would not qualify. At least this will give her an avenue to get around the denying of innocent spouse claim.

R2 (talk|edits) said:

24 November 2010
If the father of the children is not claiming the QC for the children, then she should claim the EIC. The tie-breaker rules will apply if both parents decide to claim the QC for the same child.

Waynecpa (talk|edits) said:

24 November 2010
He isn't claiming, but don't the tie-breaker rules apply even if they are not both trying to claim? I understand the IRS applies the tiebreaker rules if the taxpayer and another person claim the same child, but the EIC checklist says "If the tie-breaker rules apply, would the child be treated as the taxpayer's qualifying child?". Prior to 2009 I have to say "no" because she has the lower AGI. In 2009, I can say yes because she moved out with the children in October 2009 so they would have lived with her more than him for that year.

R2 (talk|edits) said:

24 November 2010
If the father agrees not to claim the child, the tie-breaker rules do not apply. Your fact pattern is identical to example 9 on page 15 of Publication 501.

Waynecpa (talk|edits) said:

24 November 2010
Thanks, Riley. I should have kept reading Pub 501 to the examples.

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