                              T.C. Memo. 2017-205



                        UNITED STATES TAX COURT



                PATRICIA MARIE KNEZ, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 16498-16.                         Filed October 18, 2017.



      Patricia Marie Knez, pro se.

      Monica E. Koch and Brian E. Peterson, for respondent.



                         MEMORANDUM OPINION


      LAUBER, Judge: With respect to petitioner’s Federal income tax for 2014,

the Internal Revenue Service (IRS or respondent) determined a deficiency of

$1,947 and an accuracy-related penalty of $102. The deficiency resulted from re-

spondent’s determination that petitioner was ineligible to claim an earned income

tax credit (EITC) because, while married throughout 2014, she had not filed a joint
                                         -2-

[*2] return with her husband. See sec. 32(d).1 Rather, she had erroneously filed

her 2014 return as “head of household.”

      After the notice of deficiency was issued, petitioner and her husband filed a

joint return for 2014 claiming an EITC. Respondent has moved for summary

judgment, contending that section 6013(b)(2)(B) barred them from filing a joint

return. It provides that, where an individual has filed “a separate return” for a

taxable year for which a joint return could have been made, a joint return may not

be filed “after there has been mailed to either spouse, with respect to such taxable

year, a notice of deficiency under section 6212.”

      We confronted a similar question in Camara v. Commissioner, 149 T.C. __

(Sept. 28, 2017), where we held that the bar in section 6013(b)(2)(B) against filing

jointly did not apply because the married taxpayer initially had not filed “a sepa-

rate return.” This case differs from Camara in that petitioner initially made an

erroneous election of “head of household” filing status whereas the taxpayer in

Camara initially made an erroneous election of “single” filing status. We conclude

that this distinction makes no legal difference: Because the filing status initially

selected by each married taxpayer was legally impermissible, the logic of our

      1
        All statutory references are to the Internal Revenue Code (Code) in effect
for the year in issue, and all Rule references are to the Tax Court Rules of Practice
and Procedure. We round all monetary amounts to the nearest dollar.
                                          -3-

[*3] Opinion in Camara has equal force here. With the bar in section

6013(b)(2)(B) being thus inapplicable, petitioner was entitled under section

6013(a) to file jointly with her spouse. We will therefore deny respondent’s

motion for summary judgment.

                                      Background

      The following facts are derived from the parties’ pleadings and motion pa-

pers, including the attached declarations and exhibits. Petitioner resided in New

York when she filed her petition.

      Petitioner and her husband, George L. Knez, were married throughout 2014.

They lived separately during that year, but they were not “legally separated * * *

under a decree of divorce or of separate maintenance.” See sec. 7703(a)(2). Peti-

tioner and her husband continued to live separately at the time she filed her 2014

Federal income tax return, but they reunited in July 2015.

      Petitioner timely filed Form 1040, U.S. Individual Income Tax Return, for

2014. On this return she elected “head of household” filing status, listing her

daughter, L.A.K., as a dependent2 and claiming an EITC of $1,947. Her husband

likewise timely filed a Form 1040 for 2014, electing “single” filing status and

claiming an EITC of $1,709. Petitioner and her husband included, on their respec-

      2
          We refer to minor children by their initials. See Rule 27(a)(3).
                                        -4-

[*4] tive returns, the same direct deposit information on line 76, requesting that

the refunds be deposited into their joint bank account.

      On April 25, 2016, the IRS sent petitioner a notice of deficiency for 2014.

In this notice the IRS changed her filing status to “married filing separately”; ad-

justed her standard deduction to match her revised filing status; disallowed her

claimed EITC of $1,947; determined a deficiency of $1,947; and determined an

accuracy-related penalty of $102 under section 6662(a).

      On the enclosed Form 886-A, Explanation of Items, the IRS stated: “To be

eligible for the earned income credit, married persons must file a joint return.

Since we changed your filing status to married filing separately we disallowed this

credit.” The IRS also proposed that petitioner “be restricted from receiving the

earned income credit for the following two years,” stating that this two-year ban

was being asserted “for the reckless or intentional disregard of the rules and regu-

lations governing the earned income credit.” See sec. 32(k)(1)(B)(ii).

      On June 27, 2016, petitioner and her husband filed a revised Form 1040 for

2014 electing the filing status of “married filing jointly.” They listed L.A.K. as a

dependent and claimed an EITC of $3,305. This return showed no regular tax

liability, reported self-employment and other taxes of $1,685, and requested a re-

fund of $2,620.
                                        -5-

[*5] On July 25, 2016, petitioner and her husband jointly petitioned this Court.

The petition was dismissed for lack of jurisdiction as to her husband because no

notice of deficiency had been issued to him. See secs. 6212, 7701(a)(11)(B); Rule

13. The case was recaptioned accordingly.3 On September 6, 2016, petitioner

filed a motion for entry of decision, which we denied.4 On March 17, 2017, the

IRS moved for summary judgment, and petitioner timely responded to that motion.

                                     Discussion

A.    Summary Judgment Standard

      The purpose of summary judgment is to expedite litigation and avoid costly,

time-consuming, and unnecessary trials. Fla. Peach Corp. v. Commissioner, 90

T.C. 678, 681 (1988). Under Rule 121(b) the Court may grant summary judgment

when there is no genuine dispute as to any material fact and a decision may be ren-

dered as a matter of law. Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520


      3
        The dismissal of Mr. Knez from this case does not preclude petitioner from
seeking the benefits of joint filing because she filed a joint return with him before
this case was submitted for decision. See Millsap v. Commissioner, 91 T.C. 926,
929 n.5 (1988).
      4
        That motion was premised on the fact that the IRS had sent petitioner a “no
change” letter in reference to the Form 1040 she and her husband had filed on
June 27, 2016. Respondent contended that this “no change” letter had been issued
in error, as shown by the fact that the IRS subsequently issued her a notice of
deficiency. We agreed that the letter “was issued in error” and denied the motion
for entry of decision as premature.
                                         -6-

[*6] (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). The parties agree on all issues of

basic fact, and the controlling question is solely one of law. We conclude that this

case may appropriately be considered for summary disposition.

B.    Governing Statutory Structure

      Section 6013(a) provides, with exceptions not relevant here, that “[a] hus-

band and wife may make a single return jointly of income taxes under subtitle A.”

Section 6013(b) is captioned “Joint Return After Filing Separate Return.” It pro-

vides in pertinent part as follows:

             (1) In general.--Except as provided in paragraph (2), if an
      individual has filed a separate return for a taxable year for which a
      joint return could have been made by him and his spouse under
      subsection (a) and the time prescribed by law for filing the return
      for such taxable year has not expired, such individual and his
      spouse may nevertheless make a joint return for such taxable year.
      A joint return filed by the husband and wife under this subsection
      shall constitute the return of the husband and wife for such taxable
      year * * * .

      Section 6013(b)(2) sets forth four situations in which “[t]he election pro-

vided for in paragraph (1) may not be made.” The limitation relevant here appears

in paragraph (2)(B).5 It provides that a joint return may not be filed “after there

      5
        The limitation appearing in section 6013(b)(2)(A) is inapplicable because
petitioner and her husband filed their joint return within three years of April 15,
2015, the due date (without regard to extensions) for filing a 2014 Federal income
tax return. The limitations appearing in subparagraphs (C) and (D), covering
                                                                         (continued...)
                                         -7-

[*7] has been mailed to either spouse, with respect to such taxable year, a notice of

deficiency under section 6212, if the spouse, as to such notice, files a petition with

the Tax Court within the time prescribed by section 6213.”

      The section 6013(b)(1) election applies only “if an individual has filed a

separate return” for a taxable year for which a joint return could have been made.

Thus, the limitation imposed by paragraph (2)(B) likewise has relevance only

where an individual has previously filed “a separate return.” See Camara, 149

T.C. at __ (slip op. at 6); Millsap v. Commissioner, 91 T.C. 926, 937 (1988) (over-

ruling Goldberg v. Commissioner, 14 B.T.A. 465 (1928)).

C.    Analysis

      Throughout 2014 petitioner and George L. Knez were married, as that term

is defined in section 7703.6 Because they were married, a joint return “could have

been made by * * * [them] under subsection (a).” See sec. 6013(b)(1). She and



      5
        (...continued)
situations in which a spouse has filed a refund suit or executed a closing agree-
ment, likewise have no relevance here.
      6
        Even where spouses who live apart are not “legally separated * * * under a
decree of divorce or of separate maintenance,” sec. 7703(a)(2), they will be con-
sidered as unmarried if certain conditions are satisfied, see sec. 7703(b). Peti-
tioner concedes that she was married to George L. Knez during 2014. Neither
party contends that section 7703(b) operated to render her “not married” for Fede-
ral income tax purposes at the close of her 2014 taxable year.
                                         -8-

[*8] her husband filed a joint return for 2014 after the IRS mailed her a notice of

deficiency, and she subsequently filed a timely petition with this Court. Thus, if

petitioner is regarded as having “filed a separate return” for 2014 by virtue of

having filed her original 2014 return as head of household, the statute would bar

her from later filing a joint return with her husband. See sec. 6013(b)(1), (2)(B).

      We confronted a similar question in Camara. The taxpayer there, who was

married throughout the relevant year, filed a Form 1040 on which he erroneously

elected “single” filing status. The IRS issued a notice of deficiency that changed

his filing status to married filing separately. After petitioning this Court, he and

his wife filed a joint return. Respondent contended that the husband had “filed a

separate return” within the meaning of section 6013(b)(1) and was thus precluded

by subsection (b)(2) from later filing a joint return with his wife.

      In a unanimous Court-reviewed Opinion we rejected that contention, con-

cluding that a “‘separate return’ means a return on which a married taxpayer has

claimed the permissible status of married filing separately, rather than a return on

which a married taxpayer has claimed a filing status not properly available to him

or her.” Camara, 149 T.C. at __ (slip op. at 12). In so holding we followed appel-

late court opinions ruling that single returns and head-of-household returns erro-

neously filed by married taxpayers do not constitute “separate returns” within the
                                          -9-

[*9] meaning of section 6013(b)(1). See Ibrahim v. Commissioner, 788 F.3d 834

(8th Cir. 2015) (holding that an erroneously filed head-of-household return is not a

“separate return”), rev’g and remanding T.C. Memo. 2014-8; Glaze v. United

States, 641 F.2d 339 (5th Cir. Unit B Apr. 1981) (holding that an erroneously filed

single return is not a “separate return”).

      Our reasoning in support of that conclusion rested on two principal grounds.

First, section 6013(b) characterizes the right to file a joint return after having filed

a separate return as an “election.” As the Court of Appeals for the Fifth Circuit

emphasized in Glaze, “[t]he term ‘election’ embodies the notion of choice.” 641

F.2d at 342. We reasoned in Camara that “there is no valid ‘choice’ embodied in a

return on which the taxpayer has erroneously indicated a filing status that is not

legally available to him or her.” 149 T.C. at __ (slip op. at 16). Thus, Congress’

“use of the word ‘election’ strongly supports the conclusion that an erroneous

single return is not a ‘separate return.’” Ibid.

      Second, we found this conclusion to be supported by the statute’s legislative

history. In a series of cases spanning many decades, this Court and other courts

had held that the election by married taxpayers to file separately, like their election

to make a joint return, was irrevocable once made. See, e.g., Barbetti v. Commis-

sioner, 9 T.C. 1097, 1098 (1947) (“[W]e have no authority to allow * * * [the tax-
                                         - 10 -

[*10] payer] to substitute joint returns for his separate returns.”); Downes v.

Commissioner, 5 B.T.A. 1029, 1031-1032 (1927) (holding that a return filed “on a

correct basis * * * may not be changed and another return filed on another basis

although equally correct”). In 1951 Congress concluded that this case law could

produce harsh results. “As a proper election frequently requires informed tax

knowledge not possessed by the average person, the binding elections referred to

above may result in substantially excessive taxes.” S. Rept. No. 82-781 (1951),

1951-2 C.B. 458, 492.

      Congress provided relief by enacting section 51(g) of the 1939 Code, the

predecessor of section 6013(b). That provision likewise applied only “if an indi-

vidual has filed a separate return.” The legislative history shows that Congress in-

tended this provision to alleviate problems arising from married taxpayers’ inabili-

ty to change a permissible election they had made concerning their filing status, an

election the courts had deemed binding and irrevocable. As we concluded in

Camara, this legislative history strongly suggests that the term “separate return” as

used in section 6013(b) means a return filed as “married filing separately,” be-

cause that is the only filing status (other than joint filing) that is permitted for mar-

ried taxpayers. 149 T.C. at __ (slip op. at 23).
                                         - 11 -

[*11] Our reasoning in Camara applies with equal force here. Petitioner did not

make an “election” to file as a head of household, because that filing status was

not legally available to her. See sec. 2(b)(1) (“[A]n individual shall be considered

a head of household if, and only if, such individual is not married at the close of

his taxable year.”). And because that filing status was legally impermissible, the

statute’s legislative history indicates that petitioner’s erroneously filed original

return did not constitute a “separate return.”

      In sum, we agree with the U.S. Court of Appeals for the Eighth Circuit that

petitioner’s head-of-household return, like the taxpayer’s single return in Camara,

did not constitute a “separate return” within the meaning of section 6013(b)(1).

See Ibrahim, 788 F.3d at 840. And because the prohibition in subsection (b)(2)(B)

applies only “if an individual has filed a separate return,” that prohibition does not

apply here. Petitioner and her husband were thus free under section 6013(a) to file

a joint return for 2014, even though they filed that return after the IRS had issued

petitioner a notice of deficiency from which she timely petitioned this Court.

      To implement the foregoing,


                                                  An order will be issued denying

                                        respondent’s motion for summary judgment.
