By John R. Bullis

Congress sure has some confusing rules. If you filed separate returns, but were married for the year(s) involved, you might consider filing an Amended Return form 1040X to change to filing a joint income tax return.

But if you filed a joint return, you can not file amended returns changing to two married filing separate returns. It is sort of a “one-way” street.

Some folks worry about the joint return causing a higher total tax. Depending on your income level and your various deductions and credits, a joint return usually results in the lowest tax. I mean the total tax of the two separate returns is usually more than the joint return tax.

Since Nevada is a community property state, earned income is taxable 50% on one separate return and 50% on the other separate return. The income tax withheld is also supposed to be allocated the same way, 50% on each return.

Deductions paid from community property accounts also should be allocated one-half each separate return. If you were gifted something (stock, cash, etc) or inherited something, that is not community property unless you took actions to change it from separate property to community. That means if you inherited $50,000 and you put it in your joint checking account with your spouse, the separate property nature of the item is lost-it is then treated as community property.

If you have separate property and that is used to pay some Itemized Deductions (Schedule A of form 1040 such as medical expenses, property taxes, interest, etc), that probably is a deduction only for your married filing separately return.

We have not seen IRS make a big issue of seeing the allocation of community income being allocated as mentioned above. Maybe they are too busy or don’t feel it will be worth their time. IRS is having problems keeping experienced employees, their computers are old and they have other work to do such as caused by Obamacare. Also, IRS is now sending many employees to work on the foreign bank accounts to collect tax on income that was not reported correctly. Most computer programs for the preparation of income tax returns have a feature that allows you to see the total tax on two separate returns versus the total tax on a joint return. You just need to be careful in listing the various items to recognize which spouse is involved. That is when it is important to realize which items of income, deductions, etc. are to be allocated 50% each and which are items one person has from separate property.

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