Couple married in 2020, never lived together, can he file as MFS and she file as Head of Household?

[Mountaingirl0622]

Couple married in November 2020.  They did not live together at any point in 2020.  She lived in a small apartment with her daughter that she claims as her dependent.  She has lease agreement and can document paying rent and utilities.  He lived in a friend's home.  One week prior to marriage, they purchased a house (his name only on loan, but both names on deed)  Upon discussing filing status, she stated she wanted to file as head of household.  While working through the qualifications to be "considered unmarried" (spouse not living with her last six months of years, qualifying child living with her, paying more than half the cost of house) how does the temporary absence factor in?  They did not live together in the apartment because it was too small (daughter doing remote college from home, mom working from home) and lease went through end of 2020.  He didn't want to take advantage of friend by moving two more people in.  They were having their newly purchased house remodeled (new kitchen installed, flooring, painting).  Moved into new home January 2, 2021.  Is she "considered unmarried"  for tax filing? 

[BobKamman]

How did he get the deed in both names but the loan in just one?  Did he deed it to her after purchase?  It all sounds very convenient (like leaving the house vacant for Christmas and then moving over New Years weekend).  If that's their story and they're sticking to it, you still have to contend with the language of Section 7703, which does not say "living together" -- that's just the dumbed-down language of IRS publications.  What it says is,

"during the last 6 months of the taxable year, such individual’s spouse is not a member of such household"

An IRS auditor will probably say that the new, unoccupied house is the "household," and their temporary absence while it is being remodeled is not relevant.  Or maybe her apartment is the household; he doesn't have to be spending the night there, although I wonder if this was all just a platonic arrangement.  

[Mountaingirl0622]

Thanks for your insight. While it seems on the surface, the requirements for filing as head of household are met, the fact that they only joined their lives together in November would lend itself to being one household even if they were living under two different roofs .  Sometimes I think that I over analyze/overthink situations but with due diligence requirements I want to be sure that I am not putting myself at risk.

[qbteachmt]

"Is she "considered unmarried" for tax filing?"

If you are married at year end, you are not Unmarried at year end.

[TaxGuyBill]

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@Mountaingirl0622 wrote:

how does the temporary absence factor in?

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Although I don't think the Code lists "temporary absences" for purposes of the not-living-together rule for Head of Household, I have read that the "temporary absence" factor is applied for that purposes.  I don't have a citation handy, but I am positive I read it (I don't recall if it was IRS guidance or if it was a court case).

Because of that, I don't think Head of Household is allowed.

[TAXOH]

IRS pub 501 uses the wording considered unmarried.

Considered Unmarried

To qualify for head of household status, you must be either unmarried or considered unmarried on the last day of the year. You are considered unmarried on the last day of the tax year if you meet all the following tests.

1. You file a separate return. A separate return includes a return claiming married filing separately, single, or head of household filing status.

2. You paid more than half the cost of keeping up your home for the tax year.

3. Your spouse didn't live in your home during the last 6 months of the tax year. Your spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances. See Temporary absences , later.

4. Your home was the main home of your child, stepchild, or foster child for more than half the year. (See Home of qualifying person , later, for rules applying to a child's birth, death, or temporary absence during the year.)

5. You must be able to claim the child as a dependent. However, you meet this test if you can't claim the child as a dependent only because the noncustodial parent can claim the child using the rules described, later, in Children of divorced or separated parents (or parents who live apart) under Qualifying Child or in Support Test for Children of Divorced or Separated Parents (or Parents Who Live Apart) under Qualifying Relative. The general rules for claiming a child as a dependent are explained, later, under Dependents

[qbteachmt]

I think the reference in the title: "can he file as MFS and she file as Head of Household?"

Means at least one of them is Married. Geez, people do weird things in the name of avoiding taxes, which they might not even be doing to their benefit at all.