IRS Can’t Invalidate Return After Accepting It.

BY MICHAEL LYNCH

In 1996 after 15 years of marriage and of filing joint federal income tax returns, a husband and wife divorced. Shortly thereafter, a professional tax preparer filed a joint 1995 return on their behalf, without either the husband’s or wife’s signature. The IRS accepted and processed the return, and the husband began making payments toward the couple’s joint tax obligation.

A year later, the wife filed for bankruptcy and, on the advice of the IRS, filed and signed a 1995 return as married, filing separately. This released her from the joint and several liability of the original 1995 return. The IRS then issued a new notice of deficiency to the husband based on his changed 1995 status.

The husband objected and argued that the initial 1995 joint return was valid and that the wife’s separate return should be rejected. According to the husband, the manual signature requirement had been eliminated or had become more relaxed under IRC section 6061(o).

The Tax Court sided with the government, stating that IRC section 6061(o) applied only to electronic filings. Furthermore, it held that a return without signatures submitted on behalf of a couple was not valid, regardless of whether the intent had been to file a joint return.

The husband then turned to the Tenth Circuit Court of Appeals for relief. The court noted that the IRS’s normal practice when it received an unsigned return was to either return it to the taxpayer for signature or request the signature on a separate declaration. Instead, in the present case, the IRS repeatedly refused to allow the husband to sign the original return.

The court followed Dowell v. Commissioner 614 (F2d 1263 (10th Cir., 1980)) and stated that the IRS processed, audited and used the couple’s joint return to calculate their liability and its claim against the wife’s bankrupt estate. These actions prevented the service from later declaring the return invalid. The court then held the husband intended to and was eligible to file a joint return for 1995 ( Nathan T. Olpin v. Commissioner, no. 00-9003 (10th Cir., 1-25-01)).

—Michael Lynch, Esq.,
professor of tax accounting at
Bryant College, Smithfield, Rhode Island.

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