North Richland Hills, TX asked in Tax Law for Texas

Q: In 2010 my husband and I filed joint taxes. I now have a tax credit that carries back to 2010 can I admend individual

Can I admend the taxes without the estate individually

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1 Lawyer Answer
Asher B. Fried
Asher B. Fried
  • Long Beach, CA


I don't know about the income tax law in Texas, as I'm licensed in California, but with regard to the federal tax issue, assuming that the statute of limitations for claiming a credit or refund has not expired, it appears that an individual spouse can amend a past joint return, and seek a refund for his or her share of the overpayment. The executor of your husband's estate (I take it he is deceased, since you mention "estate") would probably have to file for a refund for the estate's share of the overpayment. See exerpt below from REV. RUL. 80-8, 1980-1 C.B. 298:

Section 6402(a) of the Internal Revenue Code provides in the case of any overpayment, the Secretary may within the applicable period of limitations credit the amount of the overpayment, including any interest allowed thereon, against any liability in respect of an Internal Revenue Tax on the part of the person who made the overpayment and shall refund the balance to such person.

In Rev. Rul. 74-611, 1974-2 C.B. 399, the Service ruled that when a husband and wife file a joint return each spouse has a separate interest in the jointly reported income and a separate interest in any overpayment.

Rev. Rul. 80-7 holds that a spouse's share of a joint overpayment will be determined by subtracting the spouse's share of the joint liability, determined in accordance with the separate tax formula, from the spouse's contribution toward the joint liability. However, the ruling states that the amount of the overpayment paid to any one spouse can not exceed the amount of the joint overpayment.

In order to be consistent with Rev. Rul. 80-7 the Service will apply the separate tax method of allocation in order to determine a spouse's share of a joint overpayment that results from the filing of a separate claim for refund. Therefore, the taxpayer's individual refund will be calculated by determining the taxpayer's individual liability according to the separate tax formula:

taxpayer's recomputed separate tax liability / both spouses recomputed

separate tax liability X recomputed joint tax liability (amount shown on 1040X)

and subtracting the taxpayer's individual liability from the taxpayer's contribution determined in accordance with Rev. Rul. 80-7. The amount of the overpayment refunded to the taxpayer will be limited to the amount of the joint overpayment.

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