(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) 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.

(2) Limitations. Notwithstanding paragraph (1), for purposes of subsection (a) 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) or under the corresponding provisions of the Internal

Revenue Code of 1939.

[Sec. 2 as amended by sec. 112(b), Rev. Act 1964 (78 Stat. 24)]

[T.D. 6500, 25 F.R. 11402, Nov. 26, 1960, as amended by T.D. 6792, 30 F.R. 524, Jan. 15, 1965]

§ 1.2-1 Tax in case of joint return of husband and wife or the return of a surviving spouse.

(a) In the case of a joint return of husband and wife, or the return of a surviving spouse as defined in section 2(b), the tax imposed by section 1 shall be twice the tax that would be imposed if the taxable income were reduced by one-half. For rules relating to the filing of joint returns of husband and wife and for method of computing gross income and adjusted gross income on such joint returns, see section 6013 and the regulations thereunder.

(b) The method of computing, under section 2 (a), the tax of husband and wife in the case of a joint return, or the tax of a surviving spouse, is as follows:

(1) First, the taxable income is reduced by one-half. Second, the tax is determined as provided by section 1 by using the taxable income so reduced. Third, the tax so determined, which is the tax that would be determined if the taxable income were reduced by onehalf, is then multiplied by two to produce the tax imposed in the case of the joint return or the return of a surviving spouse, subject, however, to the allowance of any credits against the tax under

the provisions of sections 31 through 38 and the regulations thereunder.

(2) The limitation under section 1 (c) of the tax to an amount not in excess of a specified percent of the taxable income for the taxable year is to be applied before the third step above, that is, the limitation to be applied upon the tax is determined as the applicable specified percent of one-half of the taxable income for the taxable year (such onehalf of the taxable income being the actual aggregate taxable income of the spouses, or the total taxable income of the surviving spouse, as the case may be, reduced by one-half). For the percent applicable in determining the limitation of the tax under section 1 (c), see § 1.1-3. After such limitation is applied, then the tax so limited is multiplied by two as provided in section 2 (a) (the third step above).

(3) The following computation illustrates the method of application of section 2 (a) in the determination of the tax of a husband and wife filing a joint return for the calendar year 1954. If the combined gross income is $8,200, and the only deductions are the two exemptions of the taxpayers under section 151 (b) and the standard deduction under section 141, the tax on the joint return for 1954, without regard to any credits against the tax, is $1,279.60, determined as follows:

1. Gross income. 2. Less:

Standard deduction

$820

under section 141. Deduction for personal exemptions. 1, 200

3. Taxable income..

4. Taxable income reduced by onehalf

5. Tax, computed by the tax table provided under section 1 (a) ($400 plus 22 percent of excess of $3,090 over $2,000) –

-$8, 200.00

2,020.00 6, 180.00

3,090.00

639.80 6. Twice the tax in item 5-------- 1,279.60

(c) If the alternative tax is computed under section 1201 (b), relating to the alternative tax where a taxpayer (other than a corporation) has a net long-term capital gain in excess of a net short-term capital loss, the partial tax shall be computed as provided in paragraph (b) of this section but without inclusion of 50 percent of such excess in taxable income. and the total tax shall be such partial tax plus a specified percent of such excess as provided in such section 1201 (b).

(d) If a joint return of a husband and wife is filed under the provisions of section 6013 and if the husband and wife have different taxable years solely because of the death of either spouse, the taxable year of the deceased spouse covered by the joint return shall, for the purpose of the computation of the tax under section 2 (a) in respect of such joint return, be deemed to have ended on the date of the closing of the surviving spouse's taxable year.

(e) For computation of optional tax in the case of a joint return or the return of a surviving spouse, see section 3 and the regulations thereunder.

(f) For treatment of taxable years during which a change in the tax rates occurs see section 21 and the regulations thereunder.

§ 1.2-2 Definition of surviving spouse. (a) If a taxpayer is eligible to file a joint return (either under the Internal Revenue Code of 1939 without regard to section 51(b) (4) thereof or under the Internal Revenue Code of 1954 without regard to section 6013(a) (3) thereof) for the taxable year in which his spouse dies, his return for each of the next two taxable years following the year of the death of the spouse shall be treated as a joint return for purposes of sections 2(a), 3, and 141 if all three of the following requirements are satisfied:

(1) He has not remarried before the close of the taxable year the return for which is sought to be treated as a joint return, and

(2) He 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 person who is (whether by blood or adoption) a son, stepson, daughter, or stepdaughter of the taxpayer, and

(3) He is entitled for the taxable year to a deduction under section 151 (relating to deductions for dependents) with respect to such son, stepson, daughter, or stepdaughter.

A return of a surviving spouse may not be treated as a joint return unless it is for a taxable year beginning after December 31, 1953, and ending after August 16, 1954.

(b) Paragraphs (c) (1) and (d) of § 1.1-2 (relating to the head of a household) provides rules for the determina

tion under section 1(b) (2) (A) of when the taxpayer maintains as his home a household which constitutes for the taxable year the principal place of abode, as a member of such household, of another person. These same rules shall also apply in the determination of whether the corresponding requirements under section 2 (b) (1) (B) have been satisfied.

(c) If the taxpayer does not qualify under section 2 as a surviving spouse he may nevertheless qualify under section 1 (b) as a head of a household if he meets the requirements of that section.

(d) The following example illustrates the provisions relating to a surviving spouse:

Example. Assume that the taxpayer meets the requirements of subparagraph (B) of section 2 (b) (1) for the years 1954 through 1958, and that the taxpayer, whose wife died during 1953 while married to him, remarried in 1955. In 1956, the taxpayer's second wife died while married to him, and he remained single thereafter. For 1954 the taxpayer will qualify as a surviving spouse, provided that neither the taxpayer nor the first wife was a nonresident alien at any time during 1953 and that she (immediately prior to her death) did not have a taxable year different from that of the taxpayer. For 1955 the taxpayer does not qualify as a surviving spouse because he remarried before the close of that taxable year. The taxpayer will qualify as a surviving spouse for 1957 and 1958, provided that neither the taxpayer nor the second wife was a nonresident alien at any time during 1956 and that she (immediately prior to her death) did not have a taxable year different from that of the taxpayer. On the other hand, if the taxpayer, in 1956, was divorced or legally separated from his second wife, the taxpayer will not qualify as a surviving spouse for 1957 or 1958, since he could not have filed a joint return for 1956 (the year in which his second wife died).

[TD. 6500, 25 F.R. 11402, Nov. 26, 1960, as amended by TD. 6792, 30 F.R. 524, Jan. 15, 1965]

§ 1.3 Statutory provisions; optional tax if adjusted gross income is less than $5,000.

SEC. 3. Optional tax if adjusted gross income is less than $5,000-(a) Taxable years beginning in 1964. In lieu of the tax imposed by section 1, there is hereby imposed for each taxable year beginning on or after January 1, 1964, and before January 1, 1965, on the taxable income of every individual whose adjusted gross income for such year is less than $5,000 and who has elected for such year to pay the tax imposed by this section, a tax as follows: