[Code of Federal Regulations]
[Title 26, Volume 1]
[Revised as of April 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR1.2-2]

[Page 20-23]
 
                       TITLE 26--INTERNAL REVENUE
 
     CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY
 
PART 1--INCOME TAXES--Table of Contents
 
Sec. 1.2-2  Definitions and special rules.

    (a) Surviving spouse. (1) If a taxpayer is eligible to file a joint 
return 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 2 taxable years following the year of the 
death of the spouse shall be treated as a joint return for all purposes 
if all three of the following requirements are satisfied:
    (i) 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
    (ii) 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
    (iii) 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.
    (2) See paragraphs (c)(1) and (d) of this section for rules for the 
determination 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.
    (3) If the taxpayer does not qualify as a surviving spouse he may 
nevertheless qualify as a head of a household if he meets the 
requirements of Sec. 1.2-2(b).
    (4) The following example illustrates the provisions relating to a 
surviving spouse:

    Example: Assume that the taxpayer meets the requirements of this 
paragraph for the years 1967 through 1971, and that the taxpayer, whose 
wife died during 1966 while married to him, remarried in 1968. In 1969, 
the taxpayer's second wife died while married to him, and he remained 
single thereafter. For 1967 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 1966 and that she (immediately 
prior to her death) did not have a taxable year different from that of 
the taxpayer. For 1968 the taxpayer does not qualify as a surviving 
spouse because he remarried before the close of the taxable year. The 
taxpayer will qualify as a surviving spouse for 1970 and 1971, provided 
that neither the taxpayer nor the second wife was a nonresident alien at 
any time during 1969 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 1969, was divorced or legally separated 
from his second wife, the taxpayer will not qualify as a surviving 
spouse for 1970 or 1971, since he could not have filed a joint return 
for 1969 (the year in which his second wife died).


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    (b) Head of household. (1) A taxpayer shall be considered the head 
of a household if, and only if, he is not married at the close of his 
taxable year, is not a surviving spouse (as defined in paragraph (a) of 
this section, and (i) maintains as his home a household which 
constitutes for such taxable year the principal place of abode, as a 
member of such household, of at least one of the individuals described 
in subparagraph (3), or (ii) maintains (whether or not as his home) a 
household which constitutes for such taxable year the principal place of 
abode of one of the individuals described in subparagraph (4).
    (2) Under no circumstances shall the same person be used to qualify 
more than one taxpayer as the head of a household for the same taxable 
year.
    (3) Any of the following persons may qualify the taxpayer as a head 
of a household:
    (i) A son, stepson, daughter, or stepdaughter of the taxpayer, or a 
descendant of a son or daughter of the taxpayer. For the purpose of 
determining whether any of the stated relationships exist, a legally 
adopted child of a person is considered a child of such person by blood. 
If any such person is not married at the close of the taxable year of 
the taxpayer, the taxpayer may qualify as the head of a household by 
reason of such person even though the taxpayer may not claim a deduction 
for such person under section 151, for example, because the taxpayer 
does not furnish more than half of the support of such person. However, 
if any such person is married at the close of the taxable year of the 
taxpayer, the taxpayer may qualify as the head of a household by reason 
of such person only if the taxpayer is entitled to a deduction for such 
person under section 151 and the regulations thereunder. In applying the 
preceding sentence there shall be disregarded any such person for whom a 
deduction is allowed under section 151 only by reason of section 152(c) 
(relating to persons covered by a multiple support agreement).
    (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 and paragraphs (3) through (8) of section 152(a) and 
the regulations thereunder. Under section 151 the taxpayer may be 
entitled to a deduction for any of the following persons:
    (a) His brother, sister, stepbrother, or stepsister;
    (b) His father or mother, or an ancestor of either;
    (c) His stepfather or stepmother;
    (d) A son or a daughter of his brother or sister;
    (e) A brother or sister of his father or mother; or
    (f) His son-in-law, daughter-in-law, father-in-law, mother-in-law, 
brother- in-law, or sister-in-law;

if such person has a gross income of less than the amount determined 
pursuant to Sec. 1.151-2 applicable to the calendar year in which the 
taxable year of the taxpayer begins, if the taxpayer supplies more than 
one-half of the support of such person for such calendar year and if 
such person does not make a joint return with his spouse for the taxable 
year beginning in such calendar year. The taxpayer may not be considered 
to be a head of a household by reason of any person for whom a deduction 
is allowed under section 151 only by reason of sections 152 (a)(9), 152 
(a)(10), or 152(c) (relating to persons not related to the taxpayer, 
persons receiving institutional care, and persons covered by multiple 
support agreements).
    (4) The father or mother of the taxpayer may qualify the taxpayer as 
a head of a household, but only if the taxpayer is entitled to a 
deduction for the taxable year for such father or mother under section 
151 (determined without regard to section 152(c)). For example, an 
unmarried taxpayer who maintains a home for his widowed mother may not 
qualify as the head of a household by reason of his maintenance of a 
home for his mother if his mother has gross income equal to or in excess 
of the amount determined pursuant to Sec. 1.151-2 applicable to the 
calendar year in which the taxable year of the taxpayer begins, or if he 
does not furnish more than one-half of the support of his mother for 
such calendar year. For this purpose, a person who legally adopted the 
taxpayer is considered the father or mother of the taxpayer.

[[Page 22]]

    (5) For the purpose of this paragraph, the status of the taxpayer 
shall be determined as of the close of the taxpayer's taxable year. A 
taxpayer shall be considered as not married if at the close of his 
taxable year he is legally separated from his spouse under a decree of 
divorce or separate maintenance, or if at any time during the taxable 
year the spouse to whom the taxpayer is married at the close of his 
taxable year was a nonresident alien. A taxpayer shall be considered 
married at the close of his taxable year if his spouse (other than a 
spouse who is a nonresident alien) dies during such year.
    (6) If the taxpayer is a nonresident alien during any part of the 
taxable year he may not qualify as a head of a household even though he 
may comply with the other provisions of this paragraph. See the 
regulations prescribed under section 871 for a definition of nonresident 
alien.
    (c) Household. (1) In order for a taxpayer to be considered as 
maintaining a household by reason of any individual described in 
paragraph (a)(1) or (b)(3) of this section, the household must actually 
constitute the home of the taxpayer for his taxable year. A physical 
change in the location of such home will not prevent a taxpayer from 
qualifying as a head of a household. Such home must also constitute the 
principal place of abode of at least one of the persons specified in 
such paragraph (a)(1) or (b)(3) of this section. It is not sufficient 
that the taxpayer maintain the household without being its occupant. The 
taxpayer and such other person must occupy the household for the entire 
taxable year of the taxpayer. However, the fact that such other person 
is born or dies within the taxable year will not prevent the taxpayer 
from qualifying as a head of household if the household constitutes the 
principal place of abode of such other person for the remaining or 
preceding part of such taxable year. The taxpayer and such other person 
will be considered as occupying the household for such entire taxable 
year notwithstanding temporary absences from the household due to 
special circumstances. A nonpermanent failure to occupy the common abode 
by reason of illness, education, business, vacation, military service, 
or a custody agreement under which a child or stepchild is absent for 
less than 6 months in the taxable year of the taxpayer, shall be 
considered temporary absence due to special circumstances. Such absence 
will not prevent the taxpayer from being considered as maintaining a 
household if (i) it is reasonable to assume that the taxpayer or such 
other person will return to the household, and (ii) the taxpayer 
continues to maintain such household or a substantially equivalent 
household in anticipation of such return.
    (2) In order for a taxpayer to be considered as maintaining a 
household by reason of any individual described in paragraph (b)(4) of 
this section, the household must actually constitute the principal place 
of abode of the taxpayer's dependent father or mother, or both of them. 
It is not, however, necessary for the purposes of such subparagraph for 
the taxpayer also to reside in such place of abode. A physical change in 
the location of such home will not prevent a taxpayer from qualifying as 
a head of a household. The father or mother of the taxpayer, however, 
must occupy the household for the entire taxable year of the taxpayer. 
They will be considered as occupying the household for such entire year 
notwithstanding temporary absences from the household due to special 
circumstances. For example, a nonpermanent failure to occupy the 
household by reason of illness or vacation shall be considered temporary 
absence due to special circumstances. Such absence will not prevent the 
taxpayer from qualifying as the head of a household if (i) it is 
reasonable to assume that such person will return to the household, and 
(ii) the taxpayer continues to maintain such household or a 
substantially equivalent household in anticipation of such return. 
However, the fact that the father or mother of the taxpayer dies within 
the year will not prevent the taxpayer from qualifying as a head of a 
household if the household constitutes the principal place of abode of 
the father or mother for the preceding part of such taxable year.
    (d) Cost of maintaining a household. A taxpayer shall be considered 
as maintaining a household only if he pays

[[Page 23]]

more than one-half the cost thereof for his taxable year. The cost of 
maintaining a household shall be the expenses incurred for the mutual 
benefit of the occupants thereof by reason of its operation as the 
principal place of abode of such occupants for such taxable year. The 
cost of maintaining a household shall not include expenses otherwise 
incurred. The expenses of maintaining a household include property 
taxes, mortgage interest, rent, utility charges, upkeep and repairs, 
property insurance, and food consumed on the premises. Such expenses do 
not include the cost of clothing, education, medical treatment, 
vacations, life insurance, and transportation. In addition, the cost of 
maintaining a household shall not include any amount which represents 
the value of services rendered in the household by the taxpayer or by a 
person qualifying the taxpayer as a head of a household or as a 
surviving spouse.
    (e) Certain married individuals living apart. For taxable years 
beginning after December 31, 1969, an individual who is considered as 
not married under section 143(b) shall be considered as not married for 
purposes of determining whether he or she qualifies as a single 
individual, a married individual, a head of household or a surviving 
spouse under sections 1 and 2 of the Code.

[T.D. 7117, 36 FR 9398, May 25, 1971]