Joint Winners, Separate Losers: Proposals To Ease the Sting for Married Taxpayers Filing Separately

67 Pages Posted: 2 Mar 2016 Last revised: 31 Jan 2017

See all articles by Michelle Lyon Drumbl

Michelle Lyon Drumbl

Washington and Lee University School of Law

Date Written: February 29, 2016


A taxpayer who is “considered as married” according to the Internal Revenue Code’s definition must file either a joint income tax return or an individual return using the “married filing separately” filing status. Those married taxpayers who file a separate, rather than a joint, income tax return are denied valuable benefits and subjected to a host of other unfavorable limitations. Low-income taxpayers in particular are hurt by these limitations. Certain married taxpayers, including victims of domestic violence and abandoned spouses, may have no choice but to file using the married filing separately status. Low-income taxpayers in such situations could benefit tremendously from such benefits as the earned income credit as they begin to rebuild their lives, but they are denied it.

Perhaps intentionally because of these limitations, and in other cases perhaps unintentionally by misunderstanding or mistake, some taxpayers incorrectly choose single or head of household as their filing status when the correct status should have been married filing separately. In the context of the earned income tax credit, the cost to the government of this particular type of filing status error is estimated to be between $2.3 and 3.3 billion annually. This is not terribly surprising: as currently structured, the limitations on the married filing separately filing status create an incentive for this type of taxpayer or return preparer noncompliance.

Further complicating this filing status frustration, the Code imposes limitations on how and when married taxpayers may amend to file a joint return after one or both spouses files a separate return. The Internal Revenue Service applies a restrictive reading of these limitations; whether the Service is interpreting the Code correctly remains an open question in the courts.

This article explores these married taxpayer filing status limitations and the collateral consequences thereof. It briefly outlines how and why the joint filing option developed and touches upon the concepts of the marriage bonus and the marriage penalty. It concludes by proposing three alternative models to the current limitations imposed on married taxpayers who choose to (or have no choice but to) file separate returns. In each proposal, low-income taxpayers would have increased access to the credits meant to assist them. In addition to increasing fairness, each proposal also would reduce or remove a structural incentive for taxpayer noncompliance.

Keywords: Earned Income Tax Credit, Filing Status, Poverty Law, Tax Compliance, Tax Policy

JEL Classification: H2, H24, K3, K34

Suggested Citation

Drumbl, Michelle Lyon, Joint Winners, Separate Losers: Proposals To Ease the Sting for Married Taxpayers Filing Separately (February 29, 2016). 19 Florida Tax Review 399 (2016), Washington & Lee Legal Studies Paper No. 2016-8, Available at SSRN:

Michelle Lyon Drumbl (Contact Author)

Washington and Lee University School of Law ( email )

Lexington, VA 24450
United States

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