Form 8888 valid in a late-filed 2009 return?

[TaxCPANY]

Does anyone here know whether my client could include a Form 8888 and expect it to 'take', in order merely to split a 2009 refund between him & his soon-to-be-ex-spouse in their Joint return for that as-yet-unfiled year? (NOT a question about buying "savings bonds" or funding an IRA.) Only the instructions for the 2010 Form 8888 preclude filing it late, as far as I can see.

Neither Intelliconnect (the only research site I subscribe to) nor perhaps-inept Google searches of IRS.gov have led me to the IR Code or regs governing the validity of filing the Form for a prior year; so I'm posting this request, here.

Thanks much in advance for your help.

Kurt C. Wilner, CPA

Huntington, NY

[TAXBILLY]

>>Only the instructions for the 2010 Form 8888 preclude filing it late, as far as I can see<<

Didn't see anything in the instructions that said that but I have old eyes and I read the 2009 instructions.

taxbilly

[TaxCPANY]

Hi, Taxbilly,

The third bullet-point of the upperleftmost paragraph of this attached page of the 2010 Form 8888 instructions precludes the filing of the form after 12/21/2011. A similar prohibition is absent from the 2009 instructions, however -- as you saw.

My quandary is whether to infer that the 2010 instructions apply retroactively to the 2009 form, or to advise my client (and his spouse's tax advisor) that he/we should exploit this apparent oversight. My initial search through such IRS 'primary sources' as Code, Regs, Notices, etc. has not revealed the statutory basis for this deadline -- and I'll always prefer to hang my hat on primary citations.

Thanks much for your response. TaxCPANY

2010 Form 8888 p3.pdf

[TAXBILLY]

I see your point and agree it probably would be rejected.

taxbilly

[TaxCPANY]

Umm, TAXBILLY, my point was that, absent such a prohibition in the 2009 form's instructions as appears *only* in the 2010 form's instructions, a 2009-year Form 8888 yet CAN be filed -- i.e., my client's 2009 return definitely will be filed before 12/31/2011. (I only *also* would prefer to base my advice upon a more-primary/statutory source than Form Instructions; but I have not found that, on my own.)

Sorry to be so persnickety; but, if the Service rejects my client's Form 8888, I yet don't see that it would have a lawful reason to do so.

Tenaciously yours, TaxCPANY

[TAXBILLY]

My reasoning is that if the 2010 instructions uses 12/31/2011 it would stand to reason that the 2009 instructions, if it was in it at all, probably would have said 12/31/2010.

taxbilly

[TaxCPANY]

My reasoning is that if the 2010 instructions uses 12/31/2011 it would stand to reason that the 2009 istructions, if it was in it at all, probably would have said 12/31/2010.

taxbilly

Thanks again, TAXBILLY. Your logic holds true; I've learnt from some practitioners in a different forum that it's a technical obstacle erected by the Service -- i.e., direct deposit is a current-offering only.

[jainen]

>>if the Service rejects my client's Form 8888, I yet don't see that it would have a lawful reason to do so<<

The IRS has broad authority to administer the tax system. Don't waste your time trying to get them to pay in a way they don't want. No harm in filing the form. You just can't do anything about it when they mail the joint check.