[Code of Federal Regulations]
[Title 26, Volume 1]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR1.214A-4]

[Page 345-346]
 
                       TITLE 26--INTERNAL REVENUE
 
    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)
 
PART 1_INCOME TAXES--Table of Contents
 
Sec. 1.214A-4  Special rules applicable to married individuals.

    (a) Joint return requirement. This section applies only if the 
taxpayer is married at the close of a taxable year in which employment-
related expenses are paid. In such a case the deduction provided by 
section 214(a) and Sec. 1.214A-1(a) for such expenses shall be allowed 
only if for such taxable year the taxpayer files a single return jointly 
with his spouse. If either spouse dies during the taxable year and a 
joint return may be made for such year under section 6013(a)(2) for the 
survivor and the deceased spouse, the deduction shall be allowed for 
such year only if a joint return is made. If, however, the surviving 
spouse remarries before the end of his taxable year in which his first 
spouse dies, a deduction is allowed under section 214(a) on the separate 
return which is made for the decedent spouse. For purposes of this 
section, certain married individuals living apart are treated as not 
married, as provided in paragraph (c) of this section.
    (b) Gainful employment requirement--(1) In general. The employment-
related expenses incurred during any month of any period within the 
taxable year of a taxpayer who is married for such period shall be taken 
into account under section 214(a) and Sec. 1.214A-1(a) only if both the 
taxpayer and his spouse are gainfully employed on a substantially full-
time basis or are in active search of gainful employment on a 
substantially full-time basis, or if his spouse is physically or 
mentally incapable of caring for herself. For such purposes, an 
individual is considered to be gainfully employed on a substantially 
full-time basis if he is employed for three-quarters or more of the 
normal or customary work week (or the equivalent on the average during a 
month).
    (2) Determination of qualifying periods on a daily basis. For 
purposes of this paragraph, the determination as to whether an 
individual is gainfully employed on a substantially full-time basis 
shall be made on a daily basis in accordance with the provisions of 
paragraph (c)(1)(ii) of Sec. 1.214A-1, and the determination as to 
whether a spouse is physically or mentally incapable of caring for 
himself shall be made on a daily basis in accordance with paragraph 
(b)(2) of such section. Thus, for example, if a taxpayer is gainfully 
employed throughout the taxable year on a substantially full-time basis 
but his spouse ceases on August 17 of such year to be employed on a 
substantially full-time basis and on November 16 of the same year 
becomes physically or mentally incapable of caring for herself, an 
allocation must be made to determine the period ending on August 17 
during which both spouses are gainfully employed on a substantially 
full-time basis, and the incapacitated spouse is to be treated as a 
qualifying individual described in section 214(b)(1)(C) only for the 
period commencing with November 16. Employment-related expenses incurred 
from August 18 through November 15 may not be taken into account since 
only one spouse is gainfully employed on a substantially full-time basis 
during such period and the other spouse is not physically or mentally 
incapable of caring for herself during such period.
    (c) Certain married individuals living apart. For purposes of 
section 214 an individual who for his taxable year would be treated as 
not married under section 143(a)(2), or would be treated as not

[[Page 346]]

married under section 143(b) if paragraph (1) of such section referred 
to any dependent of the taxpayer (and not simply to a son, stepson, 
daughter, or stepdaughter of such individual), shall be treated as not 
married for such taxable year. Thus, an individual who is married within 
the meaning of section 143(a) will be treated as not married for his 
entire taxable year for purposes of section 214, if:
    (1) He files a separate return for such year,
    (2) He maintains as his home a household which constitutes for more 
than one-half of such year the principal place of abode of one or more 
of his dependents with respect to whom he is entitled to a deduction 
under section 151 for such year,
    (3) He furnishes over one-half of the cost of maintaining such 
household for such year, and
    (4) His spouse is not a member of such household for any part of 
such year.

Thus, for example, an individual who is married during the taxable year 
and is living apart from his spouse, but is not legally separated under 
a decree of divorce or separate maintenance, may, if he is treated as 
not married by reason of this paragraph, determine the limitation upon 
the amount of his employment-related expenses without taking into 
account the adjusted gross income of his spouse under Sec. 1.214A-
2(c)(2), without complying with the requirement under paragraph (a) of 
this section for filing a joint return with his spouse, and without 
complying with the requirement under paragraph (b) of this section that 
his spouse be gainfully employed. The principles of Sec. 1.143-1(b) 
shall apply in making determinations under this paragraph.

[T.D. 7411, 41 FR 15409, Apr. 13, 1976]