claiming MFJ status while unmarried, again

I don't think your rephrase of the question changes the issue or the answers.

Simple answer: If they hold themselves out as married, they are married. I consider signing any document as if married as holding out as married, but I don't practice in a CLM state.

That does help. Unfortunately, the answer lies in state marriage law, not tax law.

In order to legally file a joint return they must have been married as of the prior December 31. Thus it's impossible for a legally-filed tax return to "create" a common law marriage.

Your state law question, if you want to stick with your premise that a prior common law marriage didn't exist, is "Does a fraudulent joint Federal tax return create a common law marriage?"

You are not asking a tax question. Many of the responders have told you that filing a joint return does not create a marriage. Filing a joint return while domiciled in a CLM state "may" be one factor that is used under state law to determine if a CLM exists.

There are numerous websites available that explain which states have CLM and the criteria for making the determination. Just search on the phrase "common law marriage" AND state law.

To rephrase Phil's answer: It's impossible for a legally-filed tax return to "back-date" a common law marriage into the prior year. You either had a CLM in 2007 or you didn't. You can't create a 2007 CLM in 2008.

Dick

No, but signing a 2007 return as MFJ could create the CLM in 2008. ;-)

But fraudulently signing a 2007 return as MFJ in 2008 can cause the CLM to exist as of 2008.

I suppose this is a bit like the guy who embezzles $1 million, and he caught and the money recovered the following year. He has taxable income in the year of the theft, and a deduction for the following year when he's sitting in jail not earning any money.

Stu

Actually, no. Since he's sitting in jail, he gets no deduction for embezzled funds returned. The deduction is denied where there's a criminal prosecution.

Now, if he was caught, paid back the money, and is sitting on some beach somewhere (free as a bird), then I agree.

Generally (varies by state), the couple has to have legal capacity to marry, communicate intent to marry to each other, co-habit, and present themselves publicly as married.

Current CLM states: Alabama Colorado District of Columbia Iowa Kansas Montana Oklahoma Rhode Island South Carolina Texas Utah. Some states used to allow CLM, but no longer do, such as Pennsylvania up until 2005. I was surprised how many states do or until recently did, a pretty large percent of the total population. Stu, are you sure about Texas requirements? My research source claims in Texas a statement must actually be signed by both parties.

I wonder on what date do people in CLM's celebrate their wedding anniversary? Or, when does the clock start for purposes of determining Soc. Sec. benefits in the case of an ex-spouse who was married for at least ten years?

An estimated tax payment is not a signed return, I suppose that filing one or more such payments jointly (both SSNs and names on the 1040-ES form) prior to Dec 31st is not fraudulent and helps meet the requirements. Having the estimated payment come out of a joint checking account probably helps too.

-Mark Bole

actually, based on a recent thread here, I don't think it is true that as long as he is not criminally prosecuted, he gets to take the deduction. The test is whether he obtained the money as a claim of right.

"Gil Faver" >> >> > a legally-filed tax return to "create" a common law marriage.

And as I previously stated, when last I checked on this in 1992, the courts generally ruled that an embezzler, civilly prosecuted only, does get to deduct his repayments. Now, I acknowledge that there have been several CoR cases which have tightened the CoR standard, but some of the prior [embezzlement] case law did not base the deduction on section 1341.

ok, now you are agreeing with me and changing your comment from your initial post in this thread.

I cannot find Parks case on the web, but from its recitation in other cases and documents it appears Parks was "sitting on a beach, free as a bird" and yet lost out on his attempt to deduct his repayments.

Office of Chief Counsel Internal Revenue Service Memorandum

Number: 200808019

Release Date: 2/22/2008

.. . . Although most "claim of wrong" cases have involved obtaining income through criminal wrongdoing, the exception is not limited to criminal cases. In Parks v. United States, 945 F.Supp. 865 (W.D. Pa. 1996), the taxpayers sought section 1341 tax treatment for amounts they paid to settle civil fraud allegations. There was no judgment establishing that the taxpayers committed fraud. However, the court did not view the settlement in the civil action as precluding the government from proving fraud as a bar to the application of section 1341 in a federal tax proceeding. The court concluded that any income obtained through intentional wrongdoing failed to qualify for the tax benefits of section 1341 . . .

I did quite a bit of research on this a couple of years ago. I represented a guy in California who cohabited with a woman for 30 years but they never married. He did have relatives in Texas, and they visited there on occasion, telling people they were married. They had at times talked about wanting to get married, though they never got around to it.

My conclusion based on research was that was sufficient to establish what they call in Texas an informal marriage (it's now statutory there).

I'd think they'd have to establish the date to the satisfaction of a court or the relevant authorities.

Stu

No, I'm not agreeing with you. I stated that there are OTHER WAYS THAN section 1341 to allow an embezzler a deduction for repayments.

Which doesn't address the alternatives.

..>> >> >> I suppose this is a bit like the guy who embezzles $1 million, and

You ORIGNINALLY stated in this thread that if the guy is not criminally prosecuted, he is free to make the deduction.

THEN you said "courts GENERALLY ruled . . .". That is a change from your original comment in this thread.

You did say some of the case law allowed the deduction based on other than

I then provided a case which stated that even without a criminal prosecution, a Claim of Right can be denied, and thus the deduction, under

So, maybe you are not agreeing with me. I gave you the benefit of the doubt. But your origninal comment in this thread is wrong, i.e. that as long as you are not criminally prosecuted you can take the deduction.

Susan and I celebrate several anniversary days - the day on we were legally married, the next day when we had a second ceremony for family and friends, the first morning when she failed to call the police, the day I conned her into believing my registering in a hotel in New Orleans as husband & wife created a common-law marriage, and many more.

After all these years, I still believe in love.

Dick