26 U.S.C. § 2 — Definitions and special rules

submitted 72 years ago by ch. 736 to r/title-26-INTERNAL-REVENUE-CODE · 874 words · no verdicts yet

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This law defines "surviving spouse" and "head of household" for federal income tax purposes. It sets rules for a missing spouse in a combat zone, married couples living apart, and nonresident aliens.

(a) Definition of surviving spouse (1) In general. You count as a "surviving spouse" if your spouse died during one of the two tax years right before this one, and you pay for a home that is the main home all year for your dependent son, stepson, daughter, or stepdaughter. That child must qualify as your dependent under section 152 (ignoring some of its rules), and you must get a section 151 deduction for that child. You only count as "maintaining" the home if you pay over half the cost of running it for the year. (2) Limitations. Even if (1) is true, you are not a surviving spouse if you remarried before the end of the tax year, or if you and your late spouse could not have filed a joint return under section 6013 for the year your spouse died. (3) Special rule for a missing spouse. If your spouse went missing in a combat zone (as section 112 defines it) and stayed missing, the law picks an earlier "date of death" for the surviving-spouse rule in (1)(A). That date is whichever comes first: the date the military officially declares the person dead under specific military-pay laws, or (except for the Vietnam combat zone) two years after the date the combat zone was officially declared over. (b) Definition of head of household (1) In general. You count as "head of a household" only if you are unmarried at the end of your tax year, you are not a surviving spouse under (a), and one of two things is true. Either: you pay for a home that is the main home for more than half the year for your qualifying child (under section 152(c), ignoring section 152(e)) — unless that child is married at year end and is not your dependent under certain rules — or for another dependent you get a section 151 deduction for. Or: you pay for a home that is the main home all year for your father or mother, and you get a section 151 deduction for that parent. Again, you only count as maintaining the home if you pay over half its yearly cost. (2) Determination of status. For this subsection: you are not treated as married if you are legally separated under a divorce or separate-maintenance decree. You are treated as not married at year end if your spouse was a nonresident alien at any point during the year. You are treated as married at year end if your spouse (other than a nonresident alien spouse) died during the year. (3) Limitations. Even if (1) is true, you cannot be head of household if you were a nonresident alien at any point during the year, or if your only reason for claiming head-of-household status is a dependent who counts as a dependent only because of two specific exceptions in section 152(d). (c) Certain married people living apart. If section 7703(b) says you count as unmarried, you are treated as unmarried for this part of the law too. (d) Nonresident aliens. If you are a nonresident alien, the taxes in sections 1 and 55 apply to you only the way sections 871 or 877 say they do. (e) Cross reference. Section 63 explains how "taxable income" is defined.

the actual law source: uscode.house.gov ↗public domain

(a) Definition of surviving spouse

(1) In general

For purposes of section 1, the term “surviving spouse” means a taxpayer—

(A)

whose spouse died during either of his two taxable years immediately preceding the taxable year, and

(B)

who maintains as his home a household which constitutes for the taxable year the principal place of abode (as a member of such household) of a dependent (i) who (within the meaning of section 152, determined without regard to subsections (b)(1), (b)(2), and (d)(1)(B) thereof) is a son, stepson, daughter, or stepdaughter of the taxpayer, and (ii) with respect to whom the taxpayer is entitled to a deduction for the taxable year under section 151.

For purposes of this paragraph, an individual shall be considered as maintaining a household only if over half of the cost of maintaining the household during the taxable year is furnished by such individual.

(2) Limitations

Notwithstanding paragraph (1), for purposes of section 1 a taxpayer shall not be considered to be a surviving spouse—

(A)

if the taxpayer has remarried at any time before the close of the taxable year, or

(B)

unless, for the taxpayer’s taxable year during which his spouse died, a joint return could have been made under the provisions of section 6013 (without regard to subsection (a)(3) thereof).

(3) Special rule where deceased spouse was in missing status

If an individual was in a missing status (within the meaning of section 6013(f)(3)) as a result of service in a combat zone (as determined for purposes of section 112) and if such individual remains in such status until the date referred to in subparagraph (A) or (B), then, for purposes of paragraph (1)(A), the date on which such individual died shall be treated as the earlier of the date determined under subparagraph (A) or the date determined under subparagraph (B):

(A)

the date on which the determination is made under section 556 of title 37 of the United States Code or under section 5566 of title 5 of such Code (whichever is applicable) that such individual died while in such missing status, or

(B)

except in the case of the combat zone designated for purposes of the Vietnam conflict, the date which is 2 years after the date designated under section 112 as the date of termination of combatant activities in that zone.

(b) Definition of head of household

(1) In general

For purposes of this subtitle, an individual shall be considered a head of a household if, and only if, such individual is not married at the close of his taxable year, is not a surviving spouse (as defined in subsection (a)), and either—

(A)

maintains as his home a household which constitutes for more than one-half of such taxable year the principal place of abode, as a member of such household, of—

(i)

a qualifying child of the individual (as defined in section 152(c), determined without regard to section 152(e)), but not if such child—

(I)

is married at the close of the taxpayer’s taxable year, and

(II)

is not a dependent of such individual by reason of section 152(b)(2) or 152(b)(3), or both, or

(ii)

any other person who is a dependent of the taxpayer, if the taxpayer is entitled to a deduction for the taxable year for such person under section 151, or

(B)

maintains a household which constitutes for such taxable year the principal place of abode of the father or mother of the taxpayer, if the taxpayer is entitled to a deduction for the taxable year for such father or mother under section 151.

(2) Determination of status

For purposes of this subsection—

(A)

an individual who is legally separated from his spouse under a decree of divorce or of separate maintenance shall not be considered as married;

(B)

a taxpayer shall be considered as not married at the close of his taxable year if at any time during the taxable year his spouse is a nonresident alien; and

(C)

a taxpayer shall be considered as married at the close of his taxable year if his spouse (other than a spouse described in subparagraph (B)) died during the taxable year.

(3) Limitations

Notwithstanding paragraph (1), for purposes of this subtitle a taxpayer shall not be considered to be a head of a household—

(A)

if at any time during the taxable year he is a nonresident alien; or

(B)

by reason of an individual who would not be a dependent for the taxable year but for—

(i)

subparagraph (H) of section 152(d)(2), or

(ii)

paragraph (3) of section 152(d).

For purposes of this part, an individual shall be treated as not married at the close of the taxable year if such individual is so treated under the provisions of section 7703(b).

(d) Nonresident aliens

In the case of a nonresident alien individual, the taxes imposed by sections 1 and 55 shall apply only as provided by section 871 or 877.

(e) Cross reference

For definition of taxable income, see section 63.

Source credit: (Aug. 16, 1954, ch. 736, 68A Stat. 8; Pub. L. 88–272, title I, § 112(b), Feb. 26, 1964, 78 Stat. 24; Pub. L. 91–172, title VIII, § 803(b), Dec. 30, 1969, 83 Stat. 682; Pub. L. 93–597, § 3(b), Jan. 2, 1975, 88 Stat. 1951; Pub. L. 94–455, title XIX, § 1901(a)(1), (b)(9), Oct. 4, 1976, 90 Stat. 1764, 1795; Pub. L. 94–569, § 3(a), Oct. 20, 1976, 90 Stat. 2699; Pub. L. 97–448, title III, § 307(a), Jan. 12, 1983, 96 Stat. 2407; Pub. L. 98–369, div. A, title IV, § 423(c)(2), July 18, 1984, 98 Stat. 801; Pub. L. 99–514, title XIII, § 1301(j)(10), title XVII, § 1708(a)(1), Oct. 22, 1986, 100 Stat. 2658, 2782; Pub. L. 100–647, title I, § 1007(g)(13)(A), Nov. 10, 1988, 102 Stat. 3436; Pub. L. 108–311, title II, §§ 202, 207(1), Oct. 4, 2004, 118 Stat. 1175, 1177; Pub. L. 109–135, title IV, § 412(a), Dec. 21, 2005, 119 Stat. 2636.)

history & why it existsrecord from the source credit

1954Enacted · Act of Aug. 16, 1954, ch. 736
1964Amended · Pub. L. 88-272 · 78 Stat. 24
1969Amended · Pub. L. 91-172 · 83 Stat. 682
1975Amended · Pub. L. 93-597 · 88 Stat. 1951
1976Amended · Pub. L. 94-455 · 90 Stat. 1764, 1795
1976Amended · Pub. L. 94-569 · 90 Stat. 2699
1983Amended · Pub. L. 97-448 · 96 Stat. 2407
1984Amended · Pub. L. 98-369 · 98 Stat. 801
1986Amended · Pub. L. 99-514 · 100 Stat. 2658, 2782
1988Amended · Pub. L. 100-647 · 102 Stat. 3436
2004Amended · Pub. L. 108-311 · 118 Stat. 1175, 1177
2005Amended · Pub. L. 109-135 · 119 Stat. 2636

A history note hasn’t been published yet. The record shows enactment by ch. 736 on 1954-08-16.

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