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MFS not living together.... or are they?

Forum|Forum|3 years ago
March 18, 2023
8 replies
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"You and your spouse lived apart all year." ' Taxpayer did not live with spouse at any time during year"

I'm looking for an IRS cite or caselaw. defining "living with" or "living apart"

I have 2 similar situations. Retired seniors; 2nd marriages; in one case 2 condo units in the same building (different floors); in another separate free standing residences next door or down the block from each other. The couples legitimately maintain and live in their respective residences separately. But they do spend, a lot of time together, etc.

In each case MFS will result in lower taxes.

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Best answer by BobKamman

Maybe this is the other part of the story.

Are you saying they live apart but have regular social interactions? Do they have access to each other's accommodation? Do they have personal items stored in each other's home?

These may be pertinent facts that could influence the view of whether they actually live apart at all times during the year. Think there are a couple rulings but you may like to start with Costa v. Commissioner, T.C. Memo.1990–572.

Costa had nothing to do with Social Security. it was cited in a 2002 Tax Court opinion that did deal with this issue, McAdams. That case didn't need to consider whether separate residences but continuing companionship still allowed for "living apart," because the taxpayer actually stayed under the same roof for more than a month. Neither IRS nor the Tax Court is going to say that a happily married couple is "living apart" just because they aren't under the same roof. Especially when, in the case of the condo couple, they are under the same roof -- just different ceilings.

https://casetext.com/case/mcadams-v-commr-of-internal-revenue-1

sjrcpa

Level 15

I think those situations qualify, on their face at least.

So far, IRS isn't checking to see who's sleeping in whose bed at night.

I don't have a cite though.

The more I know the more I don’t know.

rbynaker

Level 13

I agree with Susan, sounds like separate residences. I've heard that spending one night with the spouse taints the "living apart"--like some sort of STD--but don't have a cite for that.

Skylane

Author

Intuit Community Champion

There really is no rest of the story… They are older, and prefer their own spaces… a quiet night sleep becomes more important and is preferable to snoring, thrashing about, and stealing the covers. Simply different lifestyles, and how they choose to live.

The IRS seems pretty silent on a definition. I was hoping to find some caselaw, but can’t.

If at first you don’t succeed…..find a workaround

T

TaxGuyBill

Level 15

To help us narrow it down, what specific items are you trying to apply this to?

IRonMaN

Level 15

I'm waiting to hear Paul Harvey come in and tell us the rest of the story.

Slava Ukraini!

PATAX

Level 12

As soon as I hear MFS then nothing but a problem. Do yourself a favor and get rid of them.

PATAX

Level 12

And when you fire them you do not have to give them a reason. We can refuse service to anyone at any time and we don't have to tell them why.

Skylane

Author

Intuit Community Champion

@PATAX A long time ago, i remember reading something in pub 17, (when it still came annually in the mail) that when there is more than one set of rules that apply you should select the one that results in a lower tax. The TP is not the problem. They’ll do whatever I tell them.

If at first you don’t succeed…..find a workaround

rbynaker

Level 13

It just depends on the math. Do keep in mind that sometimes when you're happy with Uncle Sam's result for last year, next year you might be VERY unhappy with what Aunt Irmma has to say.

BobKamman

Level 15

Are you saying MFS results in lower taxes, only if you can claim they are living apart? Because 85% of Social Security is taxable for both of them?

BobKamman

Level 15

Section 86 refers to a taxpayer who "does not live apart from his spouse at all times during the taxable year," not to a taxpayer who slept apart from his spouse at all times during the taxable year. Spending time together and enjoying life during waking hours, is clearly not "living apart." You know very well that's what Congress intended when creating an exception for spouses with one foot in divorce court and the other on a banana peel.

PATAX

Level 12

Yes the intent.

Accountant-Man

Level 13

What does it matter? Married equals MFJ or MFS, but special circumstances allow HOH.

Not married equals S, HOH or Qualified Widow/er.

You're either married, or you're not married.

** I'm still a champion... of the world! Even without The Lounge.

T

TaxGuyBill

Level 15

@Accountant-Man wrote:

What does it matter? Married equals MFJ or MFS, but special circumstances allow HOH.

Not married equals S, HOH or Qualified Widow/er.

You're either married, or you're not married.

It depends.

For example, the Earned Income Credit is disqualified for MFS. UNLESS they live apart for the last six months. And there are several other similar provisions that are based on if they live together or live apart.

That is why I asked for the specific tax circumstances that benefit from living apart.

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