When tax returns were filed on paper and physically signed, most taxpayers thought that they had to actually sign the return to be found to have elected to file a joint return.  The issue would arise when a paper return was filed with only one signature affixed.  Contrary to logic the courts have held that one does not have to sign. Your spouse can file a joint return with only his or her signature and the court can still find that you intended to file jointly.  In fact, intent to file jointly and not your signature is what the law requires.   The issue whether a joint return was intended then becomes a question of fact. (Helm v. Commissioner 27 T.C. 240 1956, aff’d 251 F. 2d 44(8^th Cir. 1958.  Both spouses must be found to have intended to make a joint return, whether or not both sign. (Lane V. Commissioner, 26 T.C. 405, 408-409 (1956); Weber v. Commissioner, T.C. Memo. 1995-125. Factors the court may consider in deciding whether a joint return was intended include:

• · Did the non-signing spouse file a separate return?
• · Did the non-signing spouse object to the joint return?
• · Did the spouses historically file jointly?
• · Did the no-signing spouse affirmatively act in a manner consistent with an intent to file jointly? (e.g., give return information to the return preparer; or, give return information to the filing spouse)
• · Did the non-singing spouse customarily rely on the filing spouse to take care of filing the return?
• · Did the return include all income and deductions for both spouses?
• · Did the non-signing spouse examine the return before filing or otherwise know of its contents?

In Frances Whitaker Harrington, n.k.a. Francesca Elaine Bloom (Kirk J. Harrington, Intervenor) v. Commissioner, T.C. Memo 2012-285, the former husband intervened in the former wife’s innocent spouse appeal.  Among his many arguments all to no avail, he’d argued that his former wife was not entitled to innocent spouse relief under 6015 (c) because no joint return had been filed.  The former wife had prepared and e-filed their 2007 joint return using TurboTax software.

The court found that the intervenor did intend to file jointly, because:

• Former wife testified credibly that she had discussed the return with intervenor on one of his regular visits to her home (they were separated at the time).
• That he had then agreed to file jointly.
• Intervenor himself testified that he and his former wife filed a return “together with everything on it very year,” which the court took to mean they had filed jointly in the past.
• Intervenor had filed an amended 2007 return in 2008 which plainly contradicted his contention that he did not intend to file jointly.

E-filed returns are rapidly superseding paper filings.  E-filed returns do not include a physical signature.  Rather an electronic 5 digit pin, most often assigned by the paid preparer, is transmitted digitally to IRS as the taxpayer’s signature.  Form 8879, IRS e-file Signature Authorization, is signed by the taxpayers and retained by the preparer as evidence that the taxpayers have authorized using the PIN as their signature.  An e-filed return requires a stated PIN for each taxpayer before the return is transmitted to IRS.  The return will not be accepted without a PIN. The preparer is supposed to obtain Form 8879 before filing, but in some cases, may take the clients word as authorization to transmit the return, expecting to receive the Form 8879 in the mail. When the Form received only has one signature, it remains to be seen how courts will apply the joint return rule. 

In Frances Whitaker Harrington the return was self-prepared and no Form 8879 was introduced as evidence.  TurboTax support states that it does not generate Form 8879 for self-prepared returns.  That is because the Form is for use by paid preparers to indicate that the preparer is authorized to enter the taxpayers PIN or digital signature on the return to be e-filed. No authorization is need for the taxpayer to affix his or her own PIN.  Thus, when Frances transmitted the e-filed return for 2007, with PINS for both spouses, the question still remains, did Kirk (intervenor) consent to the transmission of the joint return?  As stated above the court found he did.

LESSONS FROM THIS CASE

• The court did not discuss the parties’ Marital Settlement Agreement or Final Judgment but both joint return and innocent spouse claims could have been dealt with in their agreement.
• The issue can be foreclosed by the unwilling spouse filing a married filing separate return before the other spouse files the putative joint return, or even after the joint return if filed.  Although a stronger case will be presented if the MFS return is timely filed.

© 2012 by Robert S. Steinberg, Esquire
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