Taxpayer asks:

Dear Taxgirl:

Hi! My husband and I had a whirlwind beginning to our relationship.  Long story short, we got married in secret and still haven’t told our families. I share an accountant with my entire family and my mother is involved with my taxes because of different financial situations we have in our family.  I don’t trust my accountant to not share this information with my mother, so can we both file as single without getting in trouble or anyone finding out?

My husband doesn’t have the same permanent address as me and he’s filling in a different state.

Thank you!

Taxgirl says:

It doesn’t matter what you put on your Christmas cards: when it comes to taxes, married is married. For federal income tax purposes, marital status is determined by state law as of the last day of the calendar year. If you are married on December 31, 2018, you are considered married for the 2018 tax year.

There are five filing statuses to choose from:

  • Single;
  • Married Filing Jointly (MFJ);
  • Married Filing Separately (MFS);
  • Head of Household; and
  • Qualifying Widow(er) With Dependent Child.

(You can find out more about filing status here.)

If you’re not married because you were never legally married or you were legally separated or divorced according to the laws of your state, you can file as single. You can’t file as single just because you feel single or want to file as single.

If you and your husband both file as single, you may be taking advantage of tax breaks that you’re not entitled to claim. For example, the student loan interest deduction is per tax return, not per taxpayer. So while a married couple would be limited to the $2,500 cap, two singles would be limited to a $5,000 cap. Choosing the wrong filing status can also skew phaseouts and limitations. The result is that your entire return could be flawed. The bigger problem is, of course, that by choosing the wrong filing status, you’re lying on the return.

If you’re found out, you’ll have to repay the tax that you should have paid if you had filed properly. You’ll also likely have to pony up penalty and interest.

Additionally, under Title 26 USC § 7206(1), a taxpayer who “[w]illfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter” is committing a crime.

Keep in mind that you’ll be asked your filing status for tax purposes more than once. In addition to your federal form 1040, you may have to fill out state and local tax forms. And, of course, many informational forms and schedules require you to provide your filing status. For example, remember form W-4? It helps your employer determine how much federal tax to withhold from your paycheck. To do that, you have to report your filing status, and as with the federal form 1040, you sign under penalty of perjury.

There are non-tax reasons why this isn’t a good idea, too. If you want to apply for a mortgage or other loan which requires copies of your tax returns, you’re going to have to keep perpetuating the lie. Ditto for health insurance and other work-related benefits like retirement accounts, as well as legal contracts like deeds and mortgages which may require you to offer proof of marital status. How you answer those questions could have both legal and tax consequences.

With so many moving parts, keeping up with the lie is going to catch up with you. As Mark Twain once said, “If you tell the truth, you don’t have to remember anything.”

The bottom line is that this definitely isn’t a good strategy on the tax side. Only you can figure out whether it’s a good strategy on the family/relationship side, but it might be worth considering whether you want to start your new life with a lie. Best of luck.

Before you go: be sure to read my disclaimer. Remember, I’m a lawyer and we love disclaimers.
If you have a question, here’s how to “ask the taxgirl.”

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Kelly Erb is a tax attorney and tax writer.

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