Rev. Rul. 74-203

Advice has been requested whether, under the following circumstances, a return has been executed under section 6020(a) of the Internal Revenue Code of 1954 pursuant to a valid election to file a joint return under section 6013.

The taxpayers, husband and wife, did not file Federal income tax returns for the taxable year 1970. After an examination in 1972 of the taxpayers' books and records that were voluntarily made available, the revenue agent determined the income and deductions of both taxpayers and computed the 1970 tax using the rate applicable to married persons filing jointly. This determination was set forth on schedules accompanying Form 870, Waiver of Restrictions on Assessment and Collection of Deficiency in Tax and Acceptance of Overassessment, furnished the taxpayers. The taxpayers agreed to the tax liability and signed Form 870.

Most of the income upon which the tax liability was determined had been earned by the husband, while assets capable of attachment are owned by the wife. Upon action by the Internal Revenue Service to collect the liability, the wife contends that an election to file a joint return was not made by the execution of Form 870.

Section 6020(a) of the Code provides that if any person shall fail to make a required return but consents to disclose information necessary for its preparation, the Secretary or his delegate may prepare such return which, being signed by such person, may be received by the Secretary or his delegate as the return of such person.

Section 1.6013-1(a)(1) of the Income Tax Regulations provides that a husband and wife may elect to make a joint return, and for any taxable year with respect to which a joint return has been filed, separate returns shall not be made by the spouses after the time for filing the return of either has expired.

Even though a document is not in the form prescribed for use as the appropriate return, it may constitute a return if it discloses the data from which the tax can be computed, is executed by the taxpayer, and is lodged with the Internal Revenue Service (see Germantown Trust Co. v. Commissioner, 309 U.S. 304 (1940), 1940-1 C.B. 178.

In United States v. Olgeirson, 284 F. Supp. 655 (D. N. D. 1968), the District Court held that the signing of a Form 870 by a husband and wife, under circumstances similar to those described in this Revenue Ruling, made them jointly and severally liable.

The Form 870, although not containing the data from which the tax is computed, is accompanied by certain schedules, made available to the taxpayer, which contain the required data.

Accordingly, the executed Form 870 with accompanying schedules is a return under section 6020(a) of the Code and a valid election to file a joint return under section 6013.

The above conclusion applies equally to a Form 1902-E, Report of Individual Income Tax Audit Changes, or Form 4549, Income Tax Audit Changes, when signed by a husband and wife.