Taxpayers who are married on December 31 of the tax year and who cannot file as “married filing jointly” face special problems. These taxpayers will not qualify for the EIC unless they meet the requirements for head-of-household filing status.1
If a married taxpayer did not live with the spouse at any time in the last 6 months of the year, the taxpayer may be able to file as the head of household if the taxpayer furnished more than half of the cost of maintaining the household.2 Unmarried taxpayers do not have to be the head of household in order to get the EIC.
Many EIC errors involve married taxpayers who could not legally file as single or head -of-household. If a taxpayer was married on December 31 of the tax year, review the taxpayer’s proof of separate residences and the 50% support test for head-of-household filing status.
If married taxpayers incorrectly filed as head-of-household or single, they may be able to file an amended tax return to get the allowable EIC for their income level. However, they are precluded from filing a joint return after a Notice of Deficiency has been issued and a Tax Court petition filed.3 Therefore, a joint return claiming an EIC should be filed before either spouse files a Tax Court petition if this is a feasible option.