By reporting her income jointly, Tenant necessarily declared that her "tax shall be computed on the aggregate income and the liability with respect to the tax shall be joint and several." 26 U.S.C. § 6013(d)(3). Thus, in exchange for paying tax at the lower rate afforded to joint filers -- and Tenant has not offered to pay back her tax savings -- Tenant agreed that the reported income and any related liability would be treated jointly and indivisibly for all purposes.

It is well-settled under federal and New York State tax law that when married individuals elect to file a joint return, their federal AGI cannot be apportioned; instead it is fully ascribable to each joint filer. 26 USC § 6013(d)(3) states: “[I]f a joint return is made, the tax shall be computed on the aggregate income and the liability with respect to the tax shall be joint and several.” -22- RE\49426\0001\2196527v4 Treasury Regulations 26 CFR § 1.6013-4(b) similarly provides: “If a joint return is made, the gross income and adjusted gross income of husband and wife on the joint return are computed in an aggregate amount and the deductions allowed and the taxable income are likewise computed on an aggregate basis.

The income of joint filers is deemed, as a matter of law, to be the indivisible income of a single filer (see 26 CFR § 1.6013-4[b]; Helvering v Janney, 311 US 189, 192 [1940]). The phrase “joint and several,” on the other hand, relates to the tax liability of joint filers (see 26 USC § 6013[d][3]). -4- RE\49426\0001\2245718v4 DHCR mistakenly asserts that apportionment- i.e., the separation of income as between spouses who have filed a joint return- is permissible, citing Tax Law § 651(b)(2) (DHCR Br., pp. 31-32).

As a matter of federal and New York State tax law, federal AGI, if reported jointly, cannot be apportioned. See, 26 U.S.C. § 6013(d)(3). Married couples who file joint returns must report all of their income and deductions together, in contrast to the returns of married persons who file separately.

662, 678 (2009). Federal Rule of Civil Procedure 8(a) "does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me- accusation." Id. "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. Ms. Harris-Carter fails does not actually reference any statutes in her complaint, but her statement of facts, when interpreted broadly, indicates that Ms. Harris-Carter is arguing that she is not liable for employment tax liabilities on the basis of an innocent spouse claim under 26 U.S.C. § 6015. Under 26 U.S.C. § Case 8:16-cv-03410-SDM-TGW Document 5 Filed 01/18/17 Page 10 of 13 PageID 30 11 6015 an individual who elected to file a joint income tax return with a spouse or former spouse can seek to be relieved of joint and several liability. Relief under 26 U.S.C. 6015 is not available for tax returns other than joint federal income tax returns as defined under 26 U.S.C. § 6013. 26 C.F.R. § 1.6015-1 (a). Here, Ms. Harris-Carter seems to be seeking relief from unspecified employment tax liabilities , rather than a federal income tax return that she filed with Mr. Carter.

Indeed, spouses (even in a community-property state like Texas) must elect each year to file their tax return jointly or they are otherwise treated as two separate taxpayers. See 26 U.S.C. § 6013. And transfers between spouses are not simply ignored.

“[I]f a joint return is made, the tax shall be computed on the aggregate income and the liability with respect to the tax shall be joint and several.” 26 U.S.C. § 6013(d)(3). As a consequence of this joint and several liability, the government can proceed against either or both of the spouses, without regard to their relative contributions to the total income.