Collester, Lynch and Michels. The opinion of the court was delivered by Michels, J.A.D.
Plaintiff appeals from an order of the Chancery Division directing that he (1) reimburse his wife (defendant) the sum of $1,884.74, which was withheld from her paycheck for income taxes for the year 1972; (2) file a joint federal income tax return with his wife for the year 1972, and (3) hold his wife harmless for all damages, including penalties, interest and additional income taxes which may be imposed by Internal Revenue Service as a result of the filing of a joint return or filing of a separate tax return by plaintiff for the year 1972.
A judgment for separate maintenance was entered by the Chancery Division in favor of defendant on March 11, 1969. Plaintiff had admitted that he had abandoned his wife, and the trial judges found that he had abandoned her without justifiable cause, and that he had separated from her, refusing and neglecting to maintain and provide for her and the two children born of the marriage. Thereafter, defendant moved for an increase in support and maintenance for herself and the two infant children, which was denied by order dated October 17, 1969. However, the Chancery Division provided by that order that the parties file a joint federal income tax return for each calendar year or fiscal year thereafter, "so long as they may do so in accordance with the prevailing law." The order further provided that the husband "shall be responsible and shall pay all federal income taxes, including federal income surtaxes, due on the plaintiff's [wife's] earnings as a result of filing such joint return, including any taxes which plaintiff may owe as a result of support and maintenance payments received by her from the defendant [husband]." Plaintiff refused to file a joint return for the year 1972, and defendant thereupon obtained the order of July 2, 1973 from which this appeal was taken.
Prior to the filing of the notice of appeal plaintiff moved before the Chancery Division for an order staying the order of July 2, 1973, and defendant subsequently moved for an order adjudging plaintiff in contempt for failing to comply
with the terms of said order. The trial judge denied the stay and ordered plaintiff to comply with the terms of said order by paying to defendant the sum of $1,884.74, and by filing a joint income tax return with her for the year 1972 no later than August 20, 1973 or be adjudged in contempt of court. Plaintiff applied to this court for a stay of said orders pending the determination of this appeal. We ordered that plaintiff, within ten days of August 20, 1973 reimburse defendant for the taxes withheld from her paycheck for the year 1972 in the amount of $1,884.74. The remaining portions of the order of August 27, 1973 and that portion of the order of July 2, 1973 requiring plaintiff to forthwith take such steps as are necessary to file a joint tax return with defendant for the year 1972 were stayed pending the outcome of this appeal.
Plaintiff contends in this appeal that the trial court erred in ordering him to file a joint income tax return, arguing that since he and defendant are separated and since a judgment of separate maintenance has been entered by the court that he cannot file a joint income tax return.
Section 6013(a) of the Internal Revenue Code of 1954, 26 U.S.C.A., provides that a husband and wife may make a single return jointly of income taxes under subtitle A of the Internal Revenue Code even though one of the spouses has neither gross income nor deductions, except in those instances enumerated therein which are not applicable here. In order to qualify for the filing of a joint return under § 6013, the status as husband and wife of two individuals having taxable years beginning on the same date is determined as of the close of such year. Section 6013(d)(2) of the Internal Revenue Code provides:
For purposes of this section --
(2) an individual who is legally separated from his spouse under a decree of divorce or of separate maintenance shall not be considered as married;
The language of section 6013(d)(2) is clear. An individual who is legally separated from his spouse under a
decree of separate maintenance is not considered married for the purpose of filing a joint tax return, and consequently may not file such a return. See 2 Fed. Tax. Reg. § 1.6013-4(a)(2) (1974). Cf. Lawatch v. Lawatch, 161 Cal. App. 2d 780, 327 P. 2d 603, 608 (D. Ct. App. 1958); Marriner S. Eccles, 19 T.C. 1049, 1051 (1953), aff'd per curiam sub nom. Commissioner of Internal Revenue v. Eccles, 208 F. 2d 796 (4 Cir. 1953). See also Skoloff, New Jersey Family Law Practice (2d ed. 1973) at 256. Whether plaintiff was "legally separated" from defendant "under a decree * * * of separate maintenance" depends upon the nature and legal effect of a judgment ...