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

§ 1.2-1 Tax in case of joint return of husband and wife or the return of a surviving spouse.§ 1.2-2 Definitions and special rules.Prop. § 1.2-1 Proposed 2017 · Returns of surviving spouse and head of household.Prop. § 1.2-2 Proposed 2017 · Definitions and special rules.

Final rules 1

(a) Definition of surviving spouse

Amended 1964, 1969

1969 Pub. L. 91-172 Pub. L. 91–172 redesignated subsec. (b) as (a). See sec. 1(a) of this title.
1964 Pub. L. 88-272 Pub. L. 88–272 inserted reference to section 141.

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

“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.” Closing words

Textual readingALL OF= a surviving spouse

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

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(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.

Amended 2004

2004 Pub. L. 108-311 Pub. L. 108–311, § 207(1), inserted “, determined without regard to subsections (b)(1), (b)(2), and (d)(1)(B) thereof” after “section 152”.

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.

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(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):

Amended 1975

1975 Pub. L. 93-597 Pub. L. 93–597 added par. (3).

(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

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(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.

Amended 1976, 1983, 1986

1986 Pub. L. 99-514 Pub. L. 99–514, § 1708(a)(1), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “the date which is—
“(i) December 31, 1982, in the case of service in the combat zone designated for purposes of the Vietnam conflict, or
“(ii) 2 years after the date designated under section 112 as the date of termination of combatant activities in that zone, in the case of any combat zone other than that referred to in clause (i).”
1983 Pub. L. 97-448 Pub. L. 97–448 substituted “December 31, 1982” for “January 2, 1978”.
1976 Pub. L. 94-569 Pub. L. 94–569 substituted “the date which is” for “the date which is 2 years after” in provisions preceding cl. (i), substituted “January 2, 1978” for “the date of the enactment of this paragraph” in cl. (i), and substituted “2 years after the date” for “the date” in cl. (ii).

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(b) Definition of head of household

Amended 1969

1969 Pub. L. 91-172 Pub. L. 91–172 redesignated provisions of former section 1(b)(2) to (4) of this title as subsec. (b). Former subsec. (b) redesignated (a), with minor changes.

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(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—

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(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—

Amended 1984

1984 Pub. L. 98-369 Pub. L. 98–369, § 423(c)(2)(A), substituted “which constitutes for more than one-half of such taxable year” for “which constitutes for such taxable year”.

(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—

Amended 1984, 2004

2004 Pub. L. 108-311 Pub. L. 108–311, § 202(a), amended cl. (i) generally. Prior to amendment, cl. (i) read as follows: “a son, stepson, daughter, or stepdaughter of the taxpayer, or a descendant of a son or daughter of the taxpayer, but if such son, stepson, daughter, stepdaughter, or descendant is married at the close of the taxpayer’s taxable year, only if the taxpayer is entitled to a deduction for the taxable year for such person under section 151 (or would be so entitled but for paragraph (2) or (4) of section 152(e)), or”.
1984 Pub. L. 98-369 Pub. L. 98–369, § 423(c)(2)(B), inserted “(or would be so entitled but for paragraph (2) or (4) of section 152(e))”.

(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

“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—” Enclosing § 2(b)(1)

“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—” Enclosing § 2(b)(1)(A)

Textual readingALL OF= head of household via dependent

“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”

(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.

“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—” Enclosing § 2(b)(1)

Textual readingALL OF= head of household alternative met

“maintains a household which constitutes for such taxable year the principal place of abode of the father or mother of the taxpayer”

“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—

Amended 2004

2004 Pub. L. 108-311 Pub. L. 108–311, § 202(b)(1), redesignated subpars. (B) to (D) as (A) to (C), respectively, and struck out former subpar. (A) which read as follows: “a legally adopted child of a person shall be considered a child of such person by blood;”.

(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

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(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.

Amended 2005

2005 Pub. L. 109-135 Pub. L. 109–135 substituted “subparagraph (B)” for “subparagraph (C)”.

(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

Amended 2004

2004 Pub. L. 108-311 Pub. L. 108–311, § 202(b)(2), amended cls. (i) and (ii) generally. Prior to amendment, cls. (i) and (ii) read as follows:
2004 “(i) paragraph (9) of section 152(a), or
2004 “(ii) subsection (c) of section 152.”

(ii) paragraph (3) of section 152(d).

Amended 1976, 2004

2004 Pub. L. 108-311 Pub. L. 108–311, § 202(b)(2), amended cls. (i) and (ii) generally. Prior to amendment, cls. (i) and (ii) read as follows:
2004 “(i) paragraph (9) of section 152(a), or
2004 “(ii) subsection (c) of section 152.”
1976 Pub. L. 94-455 Pub. L. 94–455, § 1901(b)(9), redesignated cl. (iii) as (ii) and struck out former cl. (ii) which provided that an individual who was a dependent solely by reason of par. (10) of section 152(a) would not be considered as a head of a household.

(c) Certain married individuals living apart 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).

Amended 1969, 1976, 1986

1986 Pub. L. 99-514 Pub. L. 99–514, § 1301(j)(10), substituted “section 7703(b)” for “section 143(b)”.
1976 Pub. L. 94-455 Pub. L. 94–455, § 1901(a)(1), substituted “shall be treated as not married at the close of the taxable year” for “shall not be considered as married”.
1969 Pub. L. 91-172 Pub. L. 91–172 added subsec. (c).

(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.

Amended 1969, 1988

1988 Pub. L. 100-647 Pub. L. 100–647 substituted “the taxes imposed by sections 1 and 55” for “the tax imposed by section 1”.
1969 Pub. L. 91-172 Pub. L. 91–172 redesignated as subsec. (d) provisions of former section 1(d) with minor changes.

(e) Cross reference For definition of taxable income, see section 63.

Amended 1969

1969 Pub. L. 91-172 Pub. L. 91–172 redesignated as subsec. (e) provisions of former section 1(e).