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Tax.appeal.168
Tax.appeal.168, Tax Accountant
Category: Tax
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Experience:  3+ decades of varied tax industry exp. Tax Biz owner
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I remarried and my current husband lives in my home which is

Customer Question

I remarried and my current husband lives in my home which is in a revocable trust. We have never filed our taxes together because he owes the IRS money. He is trying to get me to file jointly with him and I refuse. He is not named in my trust my son is. I have been told that if he is not named in the trust that it is against the law for him to file jointly and take the interests a deduction on my home even if he makes the payments. He says I'm wrong. I was told this by a Bankruptcy judge. Is this true? Regardless, I'm not filing jointly with him. The way I understand it as long as I file separately the IRS cannot come after me or my property for his IRS debt.
Submitted: 1 year ago.
Category: Tax
Expert:  Tax.appeal.168 replied 1 year ago.

You are correct that as long as you continue to file married filing separately, the IRS cannot come after you or your property for his tax debt. Smart lady! Stay that way.

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Regarding the mortgage interest deduction, in order for a person to legally be able to claim the mortgage interest deduction, that person has to be a legal and equitable owner in the property. This applies even if the person is making the mortgage and property tax payments. SEE BELOW:

Treas. Reg. § 1.163-1(b) permits a deduction for interest paid on a mortgage when a taxpayer is the legal or equitable owner of the property, even though the taxpayer is not directly liable for the mortgage. -

In Bruce D. Loria v. Commissioner, TC Memo 1995-420, the same court held that the taxpayer was unable to demonstrate that he was the equitable owner of a home owned by his brother—thus denying deductions for interest and property taxes. -

REFERENCE SOURCE:

http://www.journalofaccountancy.com/issues/2008/oct/equitableownerequalsdeduction.html

Let me know if I can be of further assistance to you regarding this matter.