Treatment of community income for spouses living apart: Sec. 66 may relieve a separated spouse of the duty to report a portion of the other spouse's community property income. Part I of this two-part article discusses the requirements for relief under sec. 66(a) and denial of community property benefits under sec. 66(b).

EXECUTIVE SUMMARY

* Sec. 66 can provide a spouse relief from reporting and liability for the other spouse's income when the nonearning spouse does not receive a benefit from such income.

* If a spouse qualifies for Sec. 66(a) treatment, all items of community income must be allocated under the Sec. 879(a) rules.

* Under Sec. 66(b), a spouse may be disallowed the benefits of reporting

only his or her share of community income.

**********

This two-part article offers guidance on Sec. 66 relief for married clients who are separated and reside in community property states. Part I, below, discusses the requirements for relief from the community property laws under Sec. 66(a). It also examines Treasury's power to deny the benefit of the community property laws to a spouse under Sec. 66(b). Part II, in the April 2006 issue, will explain Sec. 66(c), which provides traditional or equitable relief to spouses in certain cases. By properly advising clients who may benefit from Sec. 66 relief, practitioners can determine that those clients do not unwittingly cause a relief request to be denied.

Background

Equal Allocations

The basic premise of state community property laws is that marriage is a partnership. As a result, all earned income by either spouse (community income) is arbitrarily allocated evenly between the two spouses, much like a business partnership with two equal partners. The question of whether items of income, earned or unearned, are considered community income to be allocated evenly to each spouse is determined under state law. Prior to the enactment of Sec. 66, allocating community income between spouses on separately filed returns often had significant tax consequences.

Example 1: C and M separated in December 1977.They live in a community property state. M stayed in the family home and supports herself with a $12,000 annual salary. C moved to another city and supports himself with an $88,000 annual salary. No funds are transferred between the spouses; C did not make the mortgage payments on the family home or pay any other household expenses after they separated. If M and C did not file a joint return for 1977, (1) M would face a tax liability on gross income of $50,000 (.5 x ($12,000 + $88,000)), even though she had access only to the $12,000 she earned. Additionally, C may be unjustly enriched by only owing tax on $50,000 of gross income, instead of the $88,000 to which he had access. (2)

Congress recognized this potential inequity and provided relief by enacting Sec. 66 as part of the Miscellaneous Revenue Act of 1980. (3) Originally, Sec. 66 allowed spouses to disregard state community property laws for Federal income tax purposes if they lived apart, did not file a joint return and met certain other criteria. However, in 1984, Congress expanded the scope of Sec. 66.The provision was broadened to provide (1) criteria under which the IRS may disallow the benefits of community property law to a spouse, and (2) additional circumstances under which a spouse might otherwise seek relief from the operation of the community property law, even if Sec. 66's original criteria are not satisfied. (4) In July 2003, final regulations under Sec. 66 (5) were issued to replace 2002 proposed regulations. Later that same month, Rev. Proc. 2003-61 (6) established threshold requirements for taxpayers requesting equitable relief under Sec. 66(c) or 6015.

Community Property States

There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. (7) Although general rules exist on characterizing an income item as either community or separate income, there are some differences among the community property states. For example, Arizona treats income earned by a spouse after a married couple separates as community income, while California treats it as separate income. (8)

Although income earned from separate property (9) generally is separate income, Idaho, Louisiana, Texas and Wisconsin usually treat it as community income. (10) Idaho, Louisiana and Texas adopted the Uniform Marital Property Act (11) (UMPA), which follows the Spanish-influenced "Louisiana Fruits" rule and classifies income from separate property as marital or community income. (12) Wisconsin also follows the "Louisiana Fruits" rule, but modifies the UMPA to allow a spouse with separate property to unilaterally declare in a written statement that income there-from is separate income. (13) The statement only works prospectively and may not be executed before marriage. (14) The remaining community property states follow the "American Rule" first adopted in California as a result of George v. Ransom. (15) That case held that it is unconstitutional in California to characterize the income from a wife's separate property as community income.

Treatment of Community Income

Congress recognized the inequity of community property laws that cause a nonearning spouse to pay tax on half of the earning spouse's income if the nonearning spouse does not receive or benefit from that income. To qualify for Sec. 66 relief, spouses must meet several specific criteria, one of which, not surprisingly, is that the earned income could not have been transferred directly or indirectly to the nonearning spouse. However, the legislative history indicates that Congress did not intend a de minimis transfer to disqualify a spouse from relief. (16) By 1984, Congress acknowledged that, even if a spouse does not meet all the Sec. 66 criteria, situations still could occur that would make it inequitable to tax a spouse filing separately on the earnings of the other spouse when the nonearning spouse received no benefit from the earnings. (17)

Sec. 66(a)

Sec. 66(a) allows a qualifying spouse to report community income under Sec. 879(a) rules, discussed below. If one spouse qualifies and reports community income under that section, then its rules apply to the other spouse as well. To qualify, a couple must have:

1. Been married at some point during the year;

2. Lived apart for the entire year; (18)

3. Not filed a joint return for a tax year beginning or ending in the calendar year;

4. Earned community income during the year; and

5. Transferred no portion of the earned income from one spouse to the other (directly or indirectly) before the close of the calendar year.

The last of these criteria often proves to be the most vexing. Under the proposed Sec. 66 regulations, there was no presumption as to whether transferred income was earned or unearned. However, the final regulations make it clear that any transfer of income between the spouses is deemed a transfer of earned income.

Example 2: R and S separated in December 2004. They live in a community property state. R provided S $1,000 per month from April through December of 2005, even though he was not legally obligated to do so. R earned $50,000 in salary and had a $10,000 gain on a capital asset he sold in October 2005. S maintains that the payments she received from R were from his capital gain. The income R transferred to S would nevertheless be considered as derived from R's earned income under Regs. Sec. 1.66-2(c).As a result, Sec. 66(a) relief would be denied, (19) even if the couple meets all the other Sec. 66 requirements.

Sec. 66(a) also makes no mention of a de minimis exception to this requirement. As mentioned above, Congress did not intend a de minimis transfer to disqualify a spouse's otherwise successful request for relief. Thus, under both the proposed (20) and final regulations, a de minimis amount of earned income is not considered a transfer of income. In addition, Regs. Sec. 1.66-2(c) indicates that any amount of earned income transferred for the benefit of a couple's children is not a transfer of income.

Example 3: A and B are separated. They live in a community property state. When A visits B and the children, she usually buys gifts for the children, takes them out to dinner and gives B money to buy groceries or school clothes. These types of transfers fit within the de minimis exception. (21)

The regulations do not specifically address which direct or indirect transfers for the benefit of the other spouse might qualify as de minimis. However, it is apparent from the examples in Regs. Sec. 1.66-2(d) that $1,000 per month in direct payments that are not court-ordered, for instance, are not de minimis transfers. On the other hand, amounts transferred for the benefit of children that may benefit the transferee spouse tangentially are de minimis transfers. There is no bright-line test.

Unlike the other Sec. 66 requirements, Sec. 66(a) does not apply on an income-item-by-income-item basis. If a spouse qualifies for Sec. 66(a) treatment, all items of community income must be allocated under Sec. 879(a). (22)

Sec. 879(a)

Sec. 879(a) prescribes the general rules for the tax treatment of community income when one or both spouses are nonresident aliens. Earned income (comprised of wages, salaries or professional fees, and other amounts received as compensation for personal services rendered) is deemed the income of the spouse who rendered the services. (23) Trade or business income is treated as the gross income and deductions of the spouse carrying on the trade or business, or, if the trade or business is jointly operated, allocated to each spouse based on their respective share of gross income and deductions. (24) A partner's distributive share of partnership income is attributed to the spouse who is the partner. (25) Under Sec. 879(a)(3), income derived from property that is considered separate property under the applicable community property laws of the state of domicile is treated as separate income of the spouse owning the property. Finally, Sec. 879(a)(4) provides that all other community income is attributed to the spouses under the community property laws of the state of domicile.

Example 4: N and O live in a community property state and meet all the requirements of Sec. 66(a).They have the following income:</p>

<pre> Salary: $200,000 (N)

$40,000 (O) Individual proprietorship income:

$10,000 (O) Rental income: $30,000 (apartments

inherited  by N) Interest income (joint savings accounts): $4,000 </pre> <p>The rental property is considered separate property under the community property law of N and O's domicile.

The income should be allocated as follows:

Salary: Under Sec. 879(a)(1), the earned income from the salaries is attributed to the spouse who performed the personal services. As a result, N has $200,000 of salary and O has $40,000, rather than N and O each being allocated half of the total (i.e., $120,000 each), under most community property laws.

Individual proprietorship income: Under Sec. 879(a)(2), Sec. 1402(a)(5)(A) applies; thus, income from the sole proprietorship is attributable to the spouse who carries on the trade or business. Here, O owns the individual proprietorship and carries out the trade or business. Thus, the $10,000 income is attributable to (O).

Rental income: N inherited the apartments that generated the $30,000 rental income. Although there is a difference of opinion as to whether income from separate property is community or separate income under community property laws, Sec. 879(a)(3) allocates income from separate property to the spouse who owns the property. Thus, the $30,000 in rental income is attributable to N.

Interest income: Jointly held property falls into Sec. 879(a)(4)'s catchall provision, which provides that such income is treated according to applicable community property law. The $4,000 interest income should thus be split evenly between N and O.

Overall: N is responsible for total gross income of $232,000 ($200,000 salary, $30,000 rental income and $2,000 interest income). O's gross income is $52,000 ($40,000 salary, $10,000 individual proprietorship and $2,000 interest income). Had the income been allocated under community property law (assuming the couple lives in a state in which income from separate property is treated as community income), each spouse would have had $142,000 gross income. Had O filed separately, without the benefit of Sec. 66(a), she would be responsible for Federal income tax on $90,000 of income ($142,000-$52,000) to which she had no access.

Denial of Federal Tax Benefits of Community Property Law

Sec. 66(b) states:

The Secretary may disallow the benefits of any community property law to any taxpayer with respect to any income if such taxpayer acted as if solely entitled to such income and failed to notify the taxpayer's spouse before the due date (including extensions) for filing the return for the taxable year in which the income was derived of the nature and amount of such income.

This gives the Service the power to disallow the benefits of community property law to a taxpayer for any income item if it can be shown the taxpayer meets two criteria for the income in question. Sec. 66(b) is not another option for a spouse who fails to meet Sec. 66(a)'s requirements. (26) A successful Sec. 66(b) action by the Service, however, will result in the spouse being denied the benefits of community property law and having to report the community income at issue, and the other spouse being relieved of the duty to report his or her share of that community income.

Sec. 66(b) does not require spouses to live apart or explicitly keep them from transferring earned income. It also can be applied to a single income item. However, the spouses must not file a joint return and must reside in a community property state. It gives the Service the power to deny Sec. 66(a) benefits to a spouse who (1) acts as if he or she were solely entitled to the income in question, and (2) fails to notify his or her spouse of the nature and amount of the income in question before the due date (including extensions) of the other spouse's return. Compliance with either of the duties bars the IRS from denying community property law benefits. (27)

Sole Entitlement 

Whether a spouse acted as if he or she was solely entitled to the income at issue is a facts-and-circumstances determination focused on whether the spouse kept the income, used the income, or made the income available to benefit the marital community. (28) When a spouse does not inform the other of interest income received and gives it to his or her sibling, for example, that spouse would be deemed to have acted as if solely entitled to the interest income. (29) A husband who, while living apart from his wife, voluntarily pays her rent while she is temporarily unemployed, does not act as if he is solely entitled to the income at issue, even if he deposits all his earnings in a separate account and his wife does not know how much he earns. The critical factor is that he made at least some of his earnings available to benefit the marital community. (30)

In Shea, (31) a Sec. 66(b) action to deny community property law benefits on the excess of a husband's business income over the amount transferred to the joint household account was rejected, even though:

* The wife was not involved in the husband's business;

* She did not know the extent of the gross income generated by the business;

* She had no signing authority over the business account;

* The business gross receipts were deposited in a separate business account rather than a joint household account; and

* Only a portion of the business income was transferred to the joint account.

The key fact appeared to be that at least some of the income in question was used to benefit the marital community. General knowledge concerning the income earned by the other spouse also seemed to play a role.

A similar result was reached in Layman II. (32) The taxpayer made a substantial number of payments to his spouse over a period of several years. The Service argued that he acted as if he was solely entitled to all of the income, because the payments varied widely in amount (from $2,000 to $308). In total, the payments were roughly equal to 20% to 35% of the taxpayer's income. The Tax Court rejected the Service's argument, holding that the taxpayer varied the payment amounts based on his spouse's needs and, thus, he did not act as if he were solely entitled to the income.

Notification

A spouse must notify his or her spouse of the nature and amount of the income in question before the due date of his or her spouse's return (including extensions). Although "general knowledge" by the other spouse appears to play a role in determining whether a spouse acted as if he or she were solely entitled to the income, that determination is still based on all the facts and circumstances, of which general knowledge is only one. Here, the other spouse must be notified or gain knowledge of the income's nature (i.e., the type and source) and amount.

Example 5: During 2005, T and V are married, but living separately in a community property state. They file separate returns. T earns $50,000 in wages and deposits the income in a separate account, but receives a Form W-2 that reports wages of $45,000. He provides a copy of the incorrect W-2 to V. V files an extension by April 15, 2006. In May, 2006, T receives a corrected W-2 showing $50,000, which he provides to V. In June, V files a separate return, reporting $22,500 as her portion of T's salary (one-half of $45,000). T correctly files a separate return reporting $25,000 as his portion of his $50,000 salary.

In the event of an audit, the IRS may not raise Sec. 66(b) as to T's salary, because he notified V about the nature and amount of the income in question before the due date of her return, including extensions. This would be true even if T acted as if he were solely entitled to the salary income. (33)

An unscrupulous spouse could take advantage of Sec. 66(b)'s requirement that the taxpayer meet both requirements, to successfully deny the benefits of the community property laws.

Example 6: J and G live separately in California. Although married, they have not lived together for some time. J earns $240,000 in salary as a family practice doctor. G teaches elementary school and earns $36,000. G is having difficulty making ends meet on her salary and asks. J for help. He agrees to pay G $2,000 per month. J does as agreed, but does not inform G how much he earned during the year and does not provide her with a copy of his Form W-2.

The Service would not be able to deny the benefits of the community property laws to J. By transferring $2,000 per month, J has provided part of his income for the benefit of the marital community and, as such, did not act like he was solely entitled to the income. The benefit is substantial. Under the community property laws, J would include only $120,000 of his salary and $18,000 of G's in gross income. As a result, his gross income would be reduced by $102,000 ($240,000-$138,000).The $102,000 reduction in income cost J only $24,000 in payments to G.

On the other hand, J's windfall is a financial disaster to G. Instead of reporting her salary of $36,000, she must report $138,000 gross income. If her average tax rate on the extra $102,000 is 24%, all the financial support she received from J must go to pay the extra tax. In such cases, G's best alternative is to seek relief under Sec. 66(c).

Conclusion

Part II, in the April 2006 issue, will discuss how a spouse can seek relief from the community property laws under Sec. 66(c), even if he or she does not meet the requirements for relief under Sec. 66(a) and the IRS has not disallowed the other spouse's community property law benefits under Sec. 66(b).

Authors' note: The views and opinions are those of the authors and do not necessarily represent the views and opinions of KPMG LLP.

(1) The proposed regulations issued in 2002 (REG-15054-01 (1/22/02)) required a separate return be filed by a requesting spouse, based on language in Patti Ann Ollestad, TC Memo 1996-139. However, the final regulations make it clear that all that is required under Sec. 66 is that no joint return be filed, even if no return was filed for the year in question; see TD 9074 (7/10/03) and Regs. Sec. 1.66-4(a)(1)(i).

(2) Of course, if M and C filed a joint return, they would be jointly and severally liable for all of the tax due, despite the source of the income. If they do not, each would be liable only for the tax due on the return they individually filed; see Sec. 6013(d)(3); see also The Willis Corp., TC Memo 1969-36, and Hilda Gayer, SD CA, 6/1/53. Sec. 6015 also provides relief for "innocent spouses." However, Sec. 66 differs from Sec. 6015 in several ways. Sec. 66 applies only to spouses living in community property states who do not file a joint return, and it operates to exclude the innocent spouse's share of community income earned by the other spouse (only one provision, equitable relief under Sec. 66(c), excuses tax liability). In contrast, Sec. 6015 applies only when a joint realm is filed and operates to excuse an "innocent spouse" from joint and several liability for all or a portion of the tax due on a joint return. Sec. 6015 can be used by married taxpayers, regardless of their state of residency.

(3) P.L. 96-605, Section 101(a).

(4) P.L. 98-369, Section 424(b)(1).

(5) See Regs. Secs. 1.66-1 through -5 (TD 9074, note 1 supra).

(6) Rev. Proc. 2003-61, 2003-2 CB 296.

(7) See IRS Pub. 555, Community Property (June 2002).

(8) See Martin v. Martin, 752 P2d 1026 (AZ Ct. App. 1998); CA Fam. Code Section 771(a).

(9) Separate property generally is property (1) acquired by one of the spouses before the marriage, (2) inherited or received as a gift by one of the spouses during the marriage, (3) purchased with one of the spouse's separate funds or (4) exchanged for separate property; see Pub. 555, note 7 supra.

(10) See Pub. 555, note 7 supra.

(11) A summary of the UMPA can be found on the website of the Uniform Law Commissioners, at www.nccusl.org/Update/uniformact_sum maries/uniformacts-s-umpa.asp.

(12) See Erlanger and Weisberger, "From Common Law Property to Community Property: Wisconsin's Marital Property Act Four Years Later," 1990 Wis. L. Rev. 769, at p. 777 and Fn. 33.

(13) See Wis. Code Section 766.59(1).

(14) See Erlanger and Weisberger, note 12, supra, at Fn. 34.

(15) George v. Ransom, 15 Cal. 322 (1860).

(16) See H Rep't No. 96-1278, 96th Cong., 2d Sess. (1980), Section 7(II)(A) (1980); see also Regs. Sec. 1.66-2(c).

(17) See H Rep't No. 98-432(II); 98th Cong., 2d Sess. (1984), Section 5(IV)(B)(4).

(18) The final regulations specify that to qualify under the living-apart requirement, the spouses must not be considered members of the same household under Regs. Sec. 1.6015-3(b). Under certain circumstances, spouses are deemed to live in the same household even if they live in separate dwellings, but are not estranged. For example, when a spouse is a member of the military and is stationed away from his or her spouse, the spouses are not considered to be living apart, because the military spouse is presumed to return to his or her spouse and again cohabitate; see Regs. Sec. 1.6015-3(b)(3)(i) and (ii); and Regs. Sec. 1.66-2(c) and (d), Example 1.

(19) See Regs. Sec. 1.66-2(c) and (d), Example 3.

(20) See Prop. Regs. Sec. 1.66-2(b).

(21) See Regs. Sec. 1.66-2(c) and (d), Example 2.

(22) See Regs. Sec. 1.66-1(b)(2).

(23) See Secs. 879(a)(1) and 911(d)(2).

(24) See Secs. 879(a)(2) and 1402(a)(5)(A).

(25) See Secs. 879(a)(2) and 1402(a)(5)(B).

(26) See Miller Hardy, 181 F3d 1002 (9th Cir. 1999).

(27) A taxpayer confronted with a Sec. 66(b) action needs to show only that he or she complied with one of the two requirements; see Regs. Sec. 1.66-3(c), Examples 1(ii) and 2.

(28) See Regs. Sec. 1.66-3(a).

(29) See Regs. Sec. 1.66-3(c), Example 1.

(30) See Regs. Sec. 1.66-3(c), Example 2.

(31) John D. Shea, 112 TC 183 (1999).

(32) Daniel F. Layman II, TC Menlo 1999-218.

(33) See Regs. Sec. 1.66-3(c), Example 2.

Allan Karnes, M.A., J.D., CPA 

KPMG Tax Research Professor

School of Accountancy

Southern Illinois University--Carbondale

Carbondale, IL

Scott Salmon, M.Acc., CPA

Partner

KPMG LLP

Washington National Tax

Washington, DC

Darla Karnes, M.Acc., CPA

Instructor

School of Accountancy

Southern Illinois University--Carbondale

Carbondale, IL