Today TaxMama hears from Lisa in Texas who tells us, “I went to new tax preparer this year. My husband and I are common law married and we live in Texas. For the past couple of years the other tax person filed us with me as head of household and my husband as single. The new tax preparer said that this was not the correct way to file because Texas is a common law state and because the state recognizes common law marriage as a legal marriage. I was told that they felt that it would not be ethical to do our returns the way we had been doing them. Is this correct? I got upset and took my stuff back because I thought that this didn’t sound right to me.”
I do believe she is correct.
Here’s what IRS says about who is considered married:
Considered married. You are considered married for the whole year if on the last day of your tax year you and your spouse meet any one of the following tests.
1.You are married and living together as husband and wife.
2.You are living together in a common law marriage that is recognized in the state where you now live or in the state where the common law marriage began.
3.You are married and living apart, but not legally separated under a decree of divorce or separate maintenance.
4.You are separated under an interlocutory (not final) decree of divorce. For purposes of filing a joint return, you are not considered divorced.
I can see why you might like filing separately. With you as head of household, you get all that money
back from the earned income credit.
Clearly, you didn’t realize you were doing anything wrong. After all the tax preparer you’d been going to all those years prepared your returns that way. Why did you change preparers?
Oh well, now that you have been advised of the law, if you don’t file as married (married-separate or married-joint), you’d be committing tax fraud. And IRS has severe penalties for people who collect the earned income credit illegally. Sorry to be the bearer of bad news!
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- Ask TaxMama :: Where taxes are fun and answers are free
- IRS Publication 501 :: Filing Status – Married