§ 1.6012-3 RETURNS BY FIDUCIARIES.—(a)

For estates and trusts. (1) In general.-Every fiduciary, or at least one of joint fiduciaries, must make a return of income on Form 1041

(i) For each estate for which he acts if the gross income of such estate for the taxable year is $600 or more;

(ii) For each trust for which he acts, except a trust exempt under section 501 (a), if such trust has for the taxable year any taxable income, or has for the taxable year gross income of $600 or more regardless of the amount of taxable income; and

(iii) For each estate and each trust for which he acts, except a trust exempt under section 501 (a), regardless of the amount of income for the taxable year, if any beneficiary of such estate or trust is a nonresident alien.

(2) Gross income of $5,000 or more.-In cases in which the gross income of the estate or trust is $5,000 or over for any taxable year, a copy of the will or trust instrument, accompanied by a written declaration of the fiduciary under the penalties of perjury that it is a true and complete copy, must be filed with the fiduciary return of the estate or trust, together with a statement by the fiduciary indicating the provisions of the will or trust instrument which, in his opinion, determine the extent to which the income of the estate or trust is taxable to the estate or trust, the beneficiaries, or the grantor, respectively. If, however, a copy of the will or trust instrument, and statement relating to the provisions of the will or trust instrument, have once been field, they need not again be filed if the fiduciary return contains a statement showing when and where they were filed. If the trust instrument is amended in any way after such copies have been filed, a copy of the amendment must be filed by the fiduciary with the return for the taxable year in which the amendment was made. The fiduciary must also file with such amendment a statement indicating the effect, if any, in his opinion, of the amendment on the extent to which the income of the estate or trust is taxable to the estate or trust, the beneficiaries, or the grantor, respectively.

(3) Domiciliary and ancillary representatives.-In the case of an estate required to file a return under subparagraph (1) of this paragraph, having both domiciliary and ancillary representatives, the domiciliary and ancillary representatives must each file a return on Form 1041. The domiciliary representative is required to include in the return rendered by him as such domiciliary representative the entire income of the estate. The return of the ancillary representative shall be filed with the district director for his internal revenue district and shall show the name and address of the domiciliary representative, the amount of gross income received by the ancillary representative, and the deductions to be claimed against such income, including any amount of income properly paid or credited by the ancillary representative to any legatee, heir, or other beneficiary. If the ancillary representative for the estate of a nonresident alien is a citizen or resident of the United States, and the domiciliary representative is a nonresident alien, such ancillary representative is required to render the return otherwise required of the domiciliary representative.

(4) Two or more trusts.-A trustee of two or more trusts must make a separate return for each trust, even though such trusts were created by the same grantor for the same beneficiary or beneficiaries.

[NOTE: Subparagraph (5) of this paragraph, relating to trusts with unrelated business income, was issued as a part of Treasury Decision 6301, approved July 2, 1958 [I.R.B. 1958-30, 10].]

(b) For other persons.-(1) Decedents.-The executor or administrator of the estate of a decedent, or other person charged with the property of a decedent, shall make the return of income required in respect of such decedent. For the decedent's taxable year which ends with the date of his death, the return shall cover the period during which he was alive. For the filing of returns of income for citizens and alien residents of the United States, and alien residents of Puerto Rico, see paragraph (a) of § 1.6012-1. For the filing of a joint return after death of spouse, see paragraph (d) of § 1.6013-1.

(2) Nonresident alien individuals.—(i) In general.-Except as otherwise provided in paragraph (b) (6) of § 1.6012-1, a resident or domestic fiduciary or other person charged with the care of the person or property of a nonresident alien individual shall make a return for that individual and pay the tax. However, if the nonresident alien individual has appointed a person in the United States to act as his agent for the purpose of making a return of income, the fiduciary or other person charged with the care of the person or property of that individual shall not be required to make a return and pay the tax in accordance with this subparagraph. In such case, if the fiduciary is required to file Form 1041 for an estate or trust of which the nonresident alien individual is a beneficiary, the fiduciary shall attach a copy of the agency appointment to his return on Form

1041.

(ii) Income to be returned.-A return of income shall be required under this subparagraph only if the nonresident alien individual is otherwise required to make a return in accordance with paragraph (b) of § 1.6012-1. The provisions of that section shall apply in determining the form of return to be used and the income to be returned.

(iii) Allowance of deductions and credits.-The nonresident alien individual shall receive the benefit of the deductions and credits allowed to him with respect to the income tax only if, pursuant to section 874, the return so filed in accordance with this subparagraph constitutes a true and accurate return of the taxpayer's total income received from all sources within the United States and required to be returned in accordance with paragraph (b) of § 1.6012-1. However, this subdivision shall not be construed to deny the credits provided by sections 31 and 32 for tax withheld at the source.

(iv) Alien resident of Puerto Rico.-This subparagraph shall not apply to the return of a nonresident alien individual who is a bona fide resident of Puerto Rico during the entire taxable year. See $1.876-1.

(v) Cross reference.-For requirements of withholding of tax at source on nonresident aliens and of returns with respect to such withheld taxes, see §§ 1.1441-1 through 1.1441-5 and §§ 1.1461-1 through 1.1461-3, respectively.

(3) Persons under a disability.—A fiduciary acting as the guardian of a minor, or as the guardian or committee of an insane person, must make the return of income required in respect of such person unless, in the case of a minor, the minor himself makes the return or causes it to be made.

(4) Corporations.-A receiver, trustee in dissolution, trustee in bankruptcy, or assignee, who, by order of a court of competent jurisdiction, by operation of law or otherwise, has possession of or holds title to all or substantially all the property or business of a corporation, shall make the return of income for such corporation in the same manner and form as corporations are required to make such returns. Such return shall be filed whether or not the receiver, trustee, or assignee is operating the property or business of the corporation. A receiver in charge of only a small part of the property of a corporation, such as a receiver in mortgage foreclosure proceedings involving merely a small portion of its property, need not make the return of income. See also § 1.6011-1, relating to information at source, and § 1.6042-1, relating to returns regarding corporate dividends, earnings, and profits.

(5) Individuals in receivership.-A receiver who stands in the place of an individual must make the return of income required in respect of such individual. A receiver of only part of the property of an individual need not file a return, and the individual must make his own return.

(c) Joint fiduciaries. In the case of joint fiduciaries, a return is required to be made by only one of such fiduciaries. A return made by one of joint fiduciaries shall contain a statement that the fiduciary has sufficient knowledge of the affairs of the person for whom the return is made to enable him to make the return, and that the return is, to the best of his knowledge and belief, true and correct.

(d) Other provisions.-For the definition of the term "fiduciary", see section 7701 (a) (6) and the regulations thereunder. For information returns required to be made by fiduciaries under section 6041, see § 1.6041-1. As to further duties and liabilities of fiduciaries, see section 6903 and § 301.6903-1 of this chapter.

§ 1.6012-4 MISCELLANEOUS RETURNS.-For returns by regulated investment companies of tax on undistributed capital gain designated for special treatment under section 852 (b) (3) (D), see § 1.852-9. For returns with respect to tax withheld from nonresident aliens and foreign corporations, and on tax-free covenant bonds, see §§ 1.1461-1 to 1.1461-3, inclusive. For returns of tax on transfers to avoid income tax, see § 1.1494-1. For the requirement of an annual report by persons completing a Government contract, see Treasury Decision 4906, approved June 23, 1939 (26 CFR (1939) 17.16) [C. B. 1939-2, 404], and Treasury Decision 4909, approved June 28, 1939 (26 CFR (1939) 16.15) [C.B. 1939-2, 422], as made applicable to section 1471 of the 1954 Code by Treasury Decision 6091, approved August 16, 1954 (19 F.R. 5167) [C.B. 1954-2, 47].

§ 1.6013 STATUTORY PROVISIONS; JOINT RETURNS OF INCOME TAX BY HUSBAND AND WIFE.

SEC. 6013. JOINT RETURNS OF INCOME TAX BY HUSBAND AND WIFE.

(a) JOINT RETURNS.-A husband and wife may make a single return Jointly of income taxes under subtitle A, even though one of the spouses has neither gross income nor deductions, except as provided below: (1) No joint return shall be made if either the husband or wife at any time during the taxable year is a nonresident alien;

(2) No joint return shall be made if the husband and wife have different taxable years; except that if such taxable years begin on the same day and end on different days because of the death of either or both, then the joint return may be made with respect to the taxable year of each. The above exception shall not apply if the surviving spouse remarries before the close of his taxable year, nor if the taxable year of either spouse is a fractional part of a year under section 443 (a) (1) ;

(3) In the case of death of one spouse or both spouses the joint return with respect to the decedent may be made only by his executor or administrator; except that in the case of the death of one spouse the joint return may be made by the surviving spouse with respect to both himself and the decedent if no return for the taxable year has been made by the decedent, no executor or administrator has been appointed, and no executor or administrator is appointed before the last day prescribed by law for filing the return of the surviving spouse. If an executor or administrator of the decedent is appointed after the making of the joint return by the surviving spouse, the executor or administrator may disaffirm such joint return by making, within 1 year after the last day prescribed by law for filing the return of the surviving spouse, a separate return for the taxable year of the decedent with respect to which the joint return was made, in which case the return made by the survivor shall constitute his separate return. (b) JOINT RETURN AFTER FILING SEPARATE RETURN.

(1) IN GENERAL.-Except as provided in paragraph (2), if an individual has filed a separate return for a taxable year for which a joint return could have been made by him and his spouse under subsection (a) and the time prescribed by law for filing the return for such taxable year has expired, such individual and his spouse may nevertheless make a joint return for such taxable year. A joint return filed by the husband and wife under this subsection shall constitute the return of the husband and wife for such taxable year, and all payments, credits, refunds, or other repayments made or allowed with respect to the separate return of either spouse for such taxable year shall be taken into account in determining the extent to which the tax based upon the joint return has been paid. If a joint return is made under this subsection, any election (other than the election to file a separate return) made by either spouse in his separate return for such taxable year with respect to the treatment of any income, deduction, or credit of such spouse shall not be changed in the making of the joint return where such election would have been irrevocable if the joint return had not been made. If a joint return is made under this subsection after the death of either spouse, such return with respect to the decedent can be made only by his executor or administrator.

(2) LIMITATIONS FOR MAKING OF ELECTION.-The election provided for in paragraph (1) may not be made

(A) Unless there is paid in full at or before the time of the filing of the joint return the amount shown as tax upon such joint return; or

(B) After the expiration of 3 years from the last date prescribed by law for filing the return for such taxable year (determined without regard to any extension of time granted to either spouse); or

497089-59-8

(C) After there has been mailed to either spouse, with respect to such taxable year, a notice of deficiency under section 6212, if the spouse, as to such notice, files a petition with the Tax Court of the United States within the time prescribed in section 6213; or

(D) After either spouse has commenced a suit in any court for the recovery of any part of the tax for such taxable year;

or

(E) After either spouse has entered into a closing agreement under section 7121 with respect to such taxable year, or after any civil or criminal case arising against either spouse with respect to such taxable year has been compromised under section 7122.

(3) WHEN RETURN DEEMED FILED—

(A) ASSESSMENT AND COLLECTION.-For purposes of section 6501 (relating to periods of limitations on assessment and collection), and for purposes of section 6651 (relating to delinquent returns), a joint return made under this subsection shall be deemed to have been filed

(i) Where both spouses filed separate returns prior to making the joint return-on the date the last separate return was filed (but not earlier than the last date prescribed by law for filing the return of either spouse);

(ii) Where only one spouse filed a separate return prior to the making of the joint return, and the other spouse had less than $600 of gross income ($1,200 in case such spouse was 65 or over) for such taxable year-on the date of the filing of such separate return (but not earlier than the last date prescribed by law for the filing of such separate return); or

(iii) Where only one spouse filed a separate return prior to the making of the joint return, and the other spouse had gross income of $600 or more ($1,200 in case such spouse was 65 or over) for such taxable year-on the date of the filing of such joint return.

(B) CREDIT OR REFUND.-For purposes of section 6511, a joint return made under this subsection shall be deemed to have been filed on the last date prescribed by law for filing the return for such taxable year (determined without regard to any extension of time granted to either spouse).

(4) ADDITIONAL TIME FOR ASSESSMENT.-If a joint return is made under this subsection, the periods of limitations provided in sections 6501 and 6502 on the making of assessments and the beginning of levy or a proceeding in court for collection shall with respect to such return include one year immediately after the date of the filing of such joint return (computed without regard to the provisions of paragraph (3)).

(5) ADDITIONS TO THE TAX AND PENALTIES.-(A) ADDITIONS TO THE TAX.-Where the amount shown as the tax by the husband and wife on a joint return made under this subsection exceeds the aggregate of the amounts shown as the tax upon the separate return of each spouse

(1) NEGLIGENCE.-If any part of such excess is attributable to negligence or intentional disregard of rules and regulations (but without intent to defraud) at the time of the making of such separate return, then 5 percent of the total amount of such excess shall be added to the tax;

(ii) FRAUD.-If any part of such excess is attributable to fraud with intent to evade tax at the time of the making of such separate return, then 50 percent of the total amount of such excess shall be added to the tax. (B) CRIMINAL PENALTY.-For purposes of section 7206 (1) and (2) and section 7207 (relating to criminal penalties in the case of fraudulent returns) the term "return" includes a