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Innocent Spouse Relief

When a husband and wife file a joint tax return, they are both jointly and severally liable for the tax due.  This means that even if only one spouse reported income, both are responsible for the tax debt.  The IRS can choose to collect the debt from both or from each spouse individually until the debt is paid in full.  Innocent spouse relief is available to you when there is a liability due to understated or improperly stated income or underpayment of tax.

There are three different types of relief available to you if you believe you should not be responsible for the liability:

  1. Innocent Spouse Relief - this type of relief is available if you filed a joint return, which has an understatement of tax that is exclusively attributable to your spouse.  You need to ask for this type of relief within two years of the IRS beginning collection activity.  You also need to prove that at the time you signed the return, you did not know and had no reason to know that there was an understatement of tax.  The IRS will examine the facts and circumstances of the case and if they determine that it would be inequitable to hold you liable for the tax debt, relief will be granted.  It is important to remember that your request must be made within two years of the IRS beginning collection action as the IRS strictly interprets this part of the statute, whether or not you were aware there was a tax liability.
  2. Separation of Liability Relief - this type of relief is available when you seek an election to allocate the deficiency between the two spouses, when an item is not properly reported on a joint return.  If the request is granted then the IRS will allocate the amount of tax that is attributable to you, the requesting spouse.  Essentially the spouses will then owe what would have been owed had they filed married filing separately.  Relief must be requested within two years of the IRS beginning collection action.  As mentioned above, the IRS strictly interprets this part of the statute, whether or not you were aware there was a tax liability.
  3. Equitable Relief - this type of relief is available only if you do not qualify for the first two types of relief and is the only type of relief available when there is an underpayment of tax.  Relief is granted when after reviewing the facts and circumstances, the IRS finds that it would be unfair to hold you, the requesting spouse, responsible for the unpaid or understated tax.  The two year time limit does not apply, but relief will usually only be granted if collection of the tax would result in a hardship or when the tax owed is attributable to the non-requesting spouse and the two year time limit passed before the requesting spouse found out about the liability and the IRS determines it would be inequitable to hold the requesting spouse responsible.

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