Not for Judge Nega, although it’s just a small-claimer, Leticia Saenz, 2015 T. C. Sum. Op. 6, filed 2/3/15. Leticia wants to take the dependency exemption, the EITC and the additional child credit for her daughter (a minor in the year at issue) and her granddaughter.

Daughter and granddaughter lived with Leticia and were supported by her for seven- months-and-change for the year at issue. Leticia filed HOH. All the foregoing is copasetic, so why the case?

Well, daughter is prone to wander, so after seven-months-and-change under Mama’s roof, daughter takes off with child and boyfriend, and the following year daughter and boyfriend file return for year at issue as MFJ.

Ordinarily, if the year at issue is barred by SOL and daughter and boyfriend got the exemption and deduction (no credit as only one child), Leticia is out of luck. IRS can’t go back against daughter and boyfriend. Except they claimed they were married when they weren’t during year at issue. They only married the next year.

At trial, boyfriend testifies “…he is currently married to [daughter] and that he agreed to marry her when they ‘signed their tax return’ and ‘decided to file jointly’.” 2015 T. C. Memo. 6, at p. 4. Daughter doesn’t testify.

So maybe no asymmetry. Now were daughter and boyfriend common-law spouses during year at issue? As residents of the Lone Star State, they could be married at common-law if “…(1) the couple agreed to be married; (2) after the agreement, they lived together as husband and wife; and (3) they represented to others that they are married. All three elements must coexist to establish a valid common law marriage.” 2015 T. C. Sum. Op. 6, at p. 6. (Citations omitted).

But they weren’t. Daughter’s brother testifies that he thought now-husband was then-boyfriend. Insouciant boyfriend testifies that when he and daughter filed MFJ tax return the following April 15, “…if we filed jointly there, according to the law or something, we would be common-law married.” 2015 T. C. Sum. Op. 6, at p. 6.

Therefore, daughter did not file joint return with spouse for year at issue, as boyfriend wasn’t spouse, so daughter is qualifying child of Leticia.

What happens next to daughter and now-husband is unclear, but I expect they’ll get an audit for the year at issue.