Tax Refund Question?

Question

I filed my 2007 taxes early 2008, filing single. Well my boyfriend and I have lived together for 3 years. He went to a accountant to file his after I already received my refund in the mail. When my boyfriend went to have his taxes professionally done, the accountant told him we could have filed jointly, married. We live in Alabama, and he said we could file under common law marriage. Well he said even though I already filed and received my refund, he could still fill out taxes for us jointly married and just send in a 1040X Amended Form with it. On the amended form he put that I should have filed married, joint, hoping the IRS will refile me. Would this work?? I was unsure of the whole situation, but he said we could get more money back filing this way. Well now, I checked our refund status on the IRS website and it says "there is a delay in processing your return." I mailed our forms out on April 14th, it has been 13 weeks now. Could there be something wrong with how we filed??

Answer 1

Sounds to me like your accountant is pretty shady.  Is he also a lawyer?  According to the Alabama Attorney General's office (see link below), there is no common law marriage without "consent to be husband and wife [and] public recognition of the existence of the marriage..."  The "public recognition" requirement means you have to have been telling everybody (such as your landlord, bank, schools, families) that you are a married couple, so the "public" will "recognize" a "marriage," not just a living-together relationship.

Answer 2

Yes

File the amended return 3 years after the due date of your 2007 return. Amended returns take up to 12 weeks to process.

Answer 3

Only you can know if your relationship falls under the guide- lines of a common-law marriage.  But, if your tax accountant asked the right questions, and you gave the right answers, then he probably feels the common-law marriage is defensible before the IRS.  Only problem is that the rebate has slowed processing times with the IRS - what normally takes 8-12 weeks is taking much longer this year - 12-20 weeks.  It sounds like the IRS wants to take a closer look at your joint return and will probably get to it in the next two or three weeks - but that is just a guess on my part.

In order for a person to have a common law marriage, all of the following elements must exist:

Capacity to marry. A person must have the legal capacity to enter into a formal marital relationship in order to form a common law marriage. Examples of when a person would not have capacity to marry would include situations such as where one is too young to legally marry, or where one of the parties is already in a legal marriage to someone else and attempts to marry prior to obtaining a divorce.

Cohabitation. There is no specific amount of time the parties must live together, but cohabitation is a requirement of a common law marriage. A common law marriage could be found to exist in as little as one day if the other elements of a common law marriage exist. Likewise, a couple could live together for five years, ten years, twenty years, or even more, and not have a common law marriage if the other requirements are not met.

Consummation. Often referred to euphemistically as the assumption of marital duties or considered to fall within the scope of cohabitation, the parties to the common law marriage must have had s*x in order for a common law marriage to exist. No common law marriage exists unless the relationship was consummated.

Agreement or Consent. A common law marriage does not happen by accident. To be a valid common law marriage, the parties must have the intention of entering into a permanent and exclusive marital relationship, whether that intent occurs by a formal agreement or by mutual consent. Whether the parties had an agreement or consented to be married is often inferred from the other factors making up common law marriage, particularly cohabitation and the next factor, public recognition.

Public Recognition. A common law marriage does not exist in secret. Part of establishing the existence of a common law marriage is showing that the couple held themselves out to the public as husband and wife. Examples of ways in which parties achieve public recognition of the marital relationship include filing joint tax returns, referring to one another as spouses in public, naming each other as beneficiaries on insurance policies, commingling of assets, the wife's use of the last name of the husband, and other actions which show an intention to live openly as husband and wife.

Answer 4

i'm pretty sure that you have to be together for 7 years to be considered common law married...

Answer 5

By you filing your own tax return, and then your boyfriend filing a joint return and a amended tax return, IRS is probably thinking you are trying cheat.  

The 1040X doesn't stay with the original return, it is pulled off and sent to the department that processes 1040X, you have cause a big problem and have delayed the processing and refund by months.

don't blame no one for your errors and IRS delay.  Just blame yourself.

Answer 6

BAD ADVICE.

Check out the Alabama conditions for being considered married, for common-law marriage

When you file an amended return it does slow everything down, and the IRS could be taking a more careful look at your return, or could ask for documentation from you, up to 3 years later.  If they determine it is erroneous, you can face penalties and interest and have to pay back the refund earned.  If they determine fraud, there are massive new consequences for preparers and taxpayers.

Answer 7

Assuming you ARE able to file as married, there's no problem in amending YOUR return to change your status to married filing jointly. As has been noted, amended returns take 8-12 weeks and even longer now due to the huge volume the IRS is receiving.