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Lawrence D. Gorin
Lawrence D. Gorin, Tax Attorney
Category: Tax
Satisfied Customers: 1503
Experience:  30+ years of legal experience. Special emphasis in divorce & family tax matters.
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I am separated and going through a divorce. My husband refused

Resolved Question:

I am separated and going through a divorce. My husband refused to give me his income and tax payment information. I proceeded and filed Married Separately. I claimed all the mortgage interest, property taxes etc. My husband filed single. His was rejected. Now he is demanding all mortgage, property tax and my income information. It appears he will be trying to deduct mortgage interest, property tax etc. How will this affect my return, which I have already received?
I estimated his income and tax payments.
Submitted: 4 years ago.
Category: Tax
Expert:  Lawrence D. Gorin replied 4 years ago.
ANSWER:
First, as a married person, you have the absolute legal right to elect to file a tax return separate from your spouse. (And if you qualify, you may be able to file as "head of household.")

Second, if you file a “married filing separately” your spouse must do likewise. He cannot file as an unmarried person.

Third, if you file a “married filing separately” and itemize deductions, your spouse must do likewise. He cannot claim a standard deduction.

Fourth, while itemized deductions may be “split” between married spouses filing separate returns (for example, you deduct half of the home mortgage interest and he deducts the other half)/ But both spouses cannot claim the full amount of any specific single deduction.

Since you apparently filed first, your return is accepted by IRS as being true, accurate, correct, and in compliance with IRS rules. As has apparently already occurred, IRS will reject the husband’s return

Further discussion:
If your filing status is married filing separately, you typically report on your income tax return only your own income, expenses, credits, and deductions. Therefore, if you paid for a doctor's appointment out of your separate checking account, you would claim that deduction on your return. Any medical expenses paid out of a joint checking account in which you and your spouse have the same interest are considered to have been paid equally by each of you, unless you can show otherwise. Different rules may apply in community property states (such as California.).

Each spouse may be able to claim itemized deductions on a married filing separate return for certain expenses that are either paid separately or jointly with the other spouse.

If the deductible expenses that are paid out of separate funds, such as medical expenses or employee business expenses, they are deductible by the spouse who pays them.

If the mortgage payment and property taxes are paid through a joint account they be shared equally on the Schedule A of the respective Spouses tax return. (So you should claim only one-half on your separate return.)

Sometimes the deductible expenses that are paid from community funds, the allocation of the deductions may depend on whether or not you live in a community property state. In a community property state, the deduction is shared equally between both of the spouses.

Finally, you would be well-advised to make copies of the mortgage and property tax information and furnish the copies to your soon-2BX. If you do not do so, he will be able to eventually compel you to do so under court order. And if the mortgage and property taxes were actually paid through the use of joint funds, you might consider filing an amended return so as to claim only half the amounts rather than the entire amounts. Even better, for both spouses, is to now join with husband and the two of you now file a joint return. (Generally, married filing separately puts one or the other taxpayer, and often both, in the worst of all tax positions. Filing a amend return jointly with spouse may very well result in a tax saving for BOTH spouses. Better to kept the money (and split the savings between the two of you) rather than giving the money to Uncle Sam.

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Customer: replied 4 years ago.

 

The mortgage payment was paid through my own separate account. If I give him all the information and he then files claiming 1/2 of mortgage interest etc, he will get rejected again...correct? There should be no reprecussion with regard to me and the IRS...correct? (I understand he may ask for half of the refund via divorce agreement). My main concern is that I am not in trouble with the IRS.

 

Expert:  Lawrence D. Gorin replied 4 years ago.
FURTHER ANSWER:
If the marital home is the separate property of one spouse, he or she can claim the deductions. If the property is jointly owned, the spouse that actually pays the mortgage interest and property taxes is entitled to take the deductions.

Rev. Rul. 71-268, in sum, says that a deduction in respect to a joint obligation is allowable to the spouse who can account for the payment by demonstrating the payment was made out of his or her funds. So it would appear your are in good shape (tax wise, that is).

Most likely, if he now files a tax return and claims as a deduction 1/2 the mortgage interest, etc., he will have to show that he in fact actually paid that 1/2 from his own separate funds. How the IRS was respond depends on the evidence he provides. If IRS finds his evidence to be creditable, it will most likely result in IRS then question you return and your claiming a deduction for the full amount. Without knowing what the evidence is, I cannot predict what IRS will do.

In any event, you are NOT in trouble with the IRS. So don’t lose any sleep over that.

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Lawrence D. Gorin, Tax Attorney
Category: Tax
Satisfied Customers: 1503
Experience: 30+ years of legal experience. Special emphasis in divorce & family tax matters.
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