Amending taxes

[NYJet]

What is the name of your state (only U.S. law)? AK

I am going thru a divorcee in Alaska and in the divorce hearing the judge said I could file an amended joint 2009 tax return. Claiming both my ex and our daughter. My ex prepared her own taxes claiming head of household and our daughter and got a $5,200 refund when I filed not claiming them I owed $3,000. The findings of fact from the court state, my ex shall have no financial consequence for allowing me to amend the 2009 tax return. If there are taxes due I am solely liable for them and if there is a refund I receive the entire refund. I went to H&R block and the amended return is a $2,400 refund. I just want to make sure I understand the courts finding, although the amend filing is a refund I have to pay the difference from her refund to what the new refund total is because she is not going to be required to repay her $5,200 refund?

 

[mistoffolees]

First question is, what was the living situation. Which home did the daughter spend the most nights in?

If the number of nights was exactly equal, then who had the greater adjusted gross income?

The court can not overrule the IRS. In the end, only one of you is going to get the deduction and the other one will have to pay back any refund that they received inappropriately along with interest and possibly penalties.

Now, it MIGHT be possible for a person who has to pay back the taxes to sue the other one, but you'd have to provide the exact wording of the ruling to determine that.

 

[NYJet]

Living situation was I moved out in March 2009. My daughter spent majority of nights with the ex.

I have the greater income the ex had very little income.

Just seems if allowed to refile my ex needs to repay her refund and we at least split the refund instead of just one of us, ME getting hit with paying $3,000.

 

[LdiJ]

What is the name of your state (only U.S. law)? AK

I am going thru a divorcee in Alaska and in the divorce hearing the judge said I could file an amended joint 2009 tax return. Claiming both my ex and our daughter. My ex prepared her own taxes claiming head of household and our daughter and got a $5,200 refund when I filed not claiming them I owed $3,000. The findings of fact from the court state, my ex shall have no financial consequence for allowing me to amend the 2009 tax return. If there are taxes due I am solely liable for them and if there is a refund I receive the entire refund. I went to H&R block and the amended return is a $2,400 refund. I just want to make sure I understand the courts finding, although the amend filing is a refund I have to pay the difference from her refund to what the new refund total is because she is not going to be required to repay her $5,200 refund?

Ok, here is the "deal". If you included all of her income on the amended tax return and also included the previous refund of 5200.00 that she received on the amended tax return and STILL ended up with a 2400.00 refund, then you don't have a problem. There are no financial consequences to either of you. That is also the appropriate way to amend two separate returns to one joint return.

However, if the amended return was NOT done that way, then you are BOTH going to have problems with the IRS. Therefore I would double check with H&R Block to make sure that all of her income plus the 5200.00 refund she received was included on the amended return.

I suspect however, by your numbers, that it was not done the correct way.

 

[NYJet]

Thank you LdiJ I am almost positive H&R Block did not include the $5,200 refund in the total. I will look into it.

Thanks again.

 

[tranquility]

I don't think you can amend your filing status.

 

[LdiJ]

I don't think you can amend your filing status.

A joint return cannot be amended into two separate returns after April 15th of the year the return is due, but two separate returns can be amended into one joint return without a problem.

Therefore why do you think he cannot amend?

 

[davew128]

I don't think you can amend your filing status.

Why not? They are still legally married, they didn't file a joint return. I am aware of no prohibition on married individuals who did not file jointly amending a return to do just that.

 

[mistoffolees]

A joint return cannot be amended into two separate returns after April 15th of the year the return is due, but two separate returns can be amended into one joint return without a problem.

Therefore why do you think he cannot amend?

The real problem will be forcing her to sign a joint return.

She got a big refund filing HOH. Why should she sign a joint return?

As I read the original post, it says that he CAN amend the filing status but not that she has to cooperate.

 

[LdiJ]

The real problem will be forcing her to sign a joint return.

She got a big refund filing HOH. Why should she sign a joint return?

As I read the original post, it says that he CAN amend the filing status but not that she has to cooperate.

This is true, but the judge also specifically stated that she is to suffer no financial consequences from the amended return. He has to pay the entire balance due or get the entire additional refund.

Therefore, if he has H&R Block correct the return to reflect the 5200.00 refund that she received (which he absolutely must do), and obeys the court order and pays any balance due, upfront, then there should be no reason for her not to cooperate.

However, if he was not going to pay the entire balance due up front, then I probably would advise her not to cooperate or sign the amended return, myself.

 

[mistoffolees]

This is true, but the judge also specifically stated that she is to suffer no financial consequences from the amended return. He has to pay the entire balance due or get the entire additional refund.

Therefore, if he has H&R Block correct the return to reflect the 5200.00 refund that she received (which he absolutely must do), and obeys the court order and pays any balance due, upfront, then there should be no reason for her not to cooperate.

However, if he was not going to pay the entire balance due up front, then I probably would advise her not to cooperate or sign the amended return, myself.

Want to bet that he didn't report the $5,200 refund that she had received?

 

[LdiJ]

Want to bet that he didn't report the $5,200 refund that she had received?

He already said that he suspected that H&R Block didn't include that and he would check into it. He responded with that as soon as he saw my original post on the subject. Therefore he is aware that it needs to be included and that it might not have been included. Therefore obviously he is going to get that fixed.

If he doesn't, then he will have not only violated the judge's order (that she is to suffer no financial consequences) but he will get his own butt in a sling with the IRS...assuming that she actually signs the incorrect amended return and he sends it in.

Hopefully he is not foolish enough to forge her signature. Amended returns cannot be filed electronically therefore original signatures ARE required.

 

[tranquility]

A joint return cannot be amended into two separate returns after April 15th of the year the return is due, but two separate returns can be amended into one joint return without a problem.

That's what I was thinking of. I'm not sure why filing joint is a permissible election amendment and filing single is not, but I agree with LdiJ wrote.

 

[LdiJ]

I will add something here however, for the sake of others that may read this thread.

State court judges (and attorneys writing things into agreements) do often make orders regarding taxes that are completely unenforceable because the IRS simply will not honor whatever it was that was agreed or ordered because it violates federal law. Federal law trumps state law where federal taxes are concerned, every time.

I have had ncps bring me court orders that state that they get earned income credit for their children, or daycare credit for their children, and I have had to refuse to give it to them, because federal tax law prohibits that.

I have had clients bring me court orders that they are to file a joint return when their divorce was final prior to 12/31 of the given year, and again, I have had to refuse to file the return that way, again, because federal law prohibits that.

The judge in this case did not have the authority to order the wife to file a joint return with her husband. They separated in March of 2009, therefore the wife was completely within her rights to file a separate, head of household return under federal law, and a state court judge does not have the authority to order her to do anything differently.

However, the state court judge DOES have the authority to tweek the marital property settlement to account for the fact that she filed a separate head of household return.

So, while state court judges cannot overrule the federal tax code, they can remedy perceived inequities in other ways.

In this case I think that while the state court order isn't enforceable, the judge was savy enough to order that any amendment should have no financial consequence to the wife. Therefore that allows the judge to enforce his/her order if the wife doesn't cooperate, via contempt, again, as long as the amended return does not put any financial consequence on the wife.

The judge cannot force her to sign the amended return, but if the amended return would save the husband some money, even if not very much, and it does not pose any consequence to her, the judge CAN penalize her for not cooperating.

 

[mistoffolees]

The judge cannot force her to sign the amended return, but if the amended return would save the husband some money, even if not very much, and it does not pose any consequence to her, the judge CAN penalize her for not cooperating.

That all seems reasonable, but it's never going to be that simple.

She could argue that it opens her up for audits, not just this year, but future years - and that there are therefore negative consequences to signing the joint return. Furthermore, it makes her responsible for the numbers that HE provides and the tax calculations that he provides. Since there's no advantage to her in signing, why should she be taking on the additional risk?