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What are the requirements for innocent spouse relief?

Divorce filings spike at the beginning of the year. Depending on how long it takes to obtain a final divorce decree, you may still need to file taxes together for a year or two. If you did not control the family finances during marriage, unpleasant tax surprises might come up in the divorce process.

Married individuals who file a joint tax return are jointly and severally liable for any tax bill. This means that the Internal Revenue Service can try to collect the entire amount of back taxes, penalties and interest from either spouse who signed the tax return. It does not matter that your husband was the one who misstated income or took an unauthorized disbursement from a retirement account.

Section 6015 relief

The agency can grant relief to an innocent spouse depending on the circumstances. Could you apply? You can, if you are divorced, widowed or separated and have lived apart for at least 12 months.

How do you ask for relief? You need to request it specifically. While this is intuitive, it often makes sense to speak with a tax attorney for counsel on the application process and for help building the strongest case.

The agency has the discretion to grant one of the following three types of relief:

  • Innocent spouse offers relief when a former spouse underreported income by failing to report income or claiming inappropriate credits or deductions
  • Separation of liability allocates the tax bill between you and your ex-spouse as though you had filed separate tax returns.
  • Equitable relief is the last catchall option when the others do not fit.

It is important to deal with the tax issue as soon as possible to avoid IRS collection efforts such as a tax lien against your property or a levy of a bank account awarded to you in the divorce. In addition, your time to act is limited.

Two years deadline

Generally, you only have two years from the first IRS collection notice to request relief. In 2013, the agency proposed a new rule that would remove the two-year deadline, but no action has since been taken to adopt the rule.

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