Executrix could not disaffirm returns filed before spouse became a surviving spouse

Plain-English summary

Chief Counsel considered whether an executrix could disaffirm amended returns filed by a decedent's wife for several redacted tax years. Section 6013(a)(3) allows disaffirmance of a return made by a surviving spouse, but Section 2(a) defines that status by reference to the spouse's death during the two preceding tax years. Because the husband was alive during the years at issue, the wife was not a surviving spouse for those years and the executrix could not disaffirm the amended returns. The one-year disaffirmance deadline would apply to a later return for a year in which the wife did qualify as a surviving spouse.

Ruling snapshot

• Question: Could the executrix disaffirm amended returns filed by the decedent's wife for years when the husband was still alive?
• Outcome: advice
• Key authorities: IRC §§ 2(a), 6013(a)(3)

Full text (IRS public release)

ID:        CCA_2018032814224148
UILC:      1.02-00

Number: 201830012
Release Date: 7/27/2018
From:
Sent: Wednesday, March 28, 2018 2:22:41 PM
To:
Cc:
Bcc:
Subject: FW: Section 6013(a)(3) issue


Hi ------------,

You asked us whether the executrix can disaffirm the amended returns filed for
tax years -------, -------, and ------- under IRC 6013(a)(3) or whether she is barred by
a deadline. Our interpretation of IRC 6013(a)(3) is that it does not apply in the
present case and that the executrix cannot disaffirm the amended returns filed
by the decedent’s wife for those years.

The definition of “surviving spouse” given in IRC 2(a) states that a surviving
spouse is a taxpayer “whose spouse died during either of his two taxable years
immediately preceding the taxable year.” In -------, -------, and -------, the
husband was still alive, so the wife is not considered a surviving spouse as to
those years. Because IRC 6013(a)(3) allows the executrix to disaffirm returns
made only by a surviving spouse, and because the wife is not considered to be
a surviving spouse as to tax years -------, -------, and -------, the executrix will not be
able to disaffirm the amended returns filed by the wife. This reading of IRC
6013(a)(3) is consistent with the one year deadline provided in IRC 6013(a)(3) for
the executrix to disaffirm a joint return, which will apply to the return filed in -------
because the wife is considered to be a surviving spouse as to that year.

Thanks,
-------------

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