Payroll Withholding Taxes Mark D. Zinn Attorneys Leawood Kansas

Innocent Spouse Relief

INNOCENT SPOUSE RELIEF

When a married couple files a joint income tax return, both taxpayers are jointly and individually liable for the tax and any penalties and interest due, even if they later divorce.

Potential relief from the liability that resulted from filing a joint return is called, "Innocent Spouse Relief", and is divided into three categories with different requirements for each. The person seeking innocent spouse relief is called the "electing spouse", and, the other person is called the "non-electing spouse".

The three categories, and the requirements for each, are as follows:

1. Innocent Spouse Relief

a. You are still married to the non-electing spouse;

b. You filed a joint return that has an understatement of tax due to an erroneous item of the other spouse;

c. At the time the joint return was filed, you had no reason to know there was an understatement of tax; and,

d. It would be unfair to hold you liable for the understatement of tax, taking into consideration all the facts and circumstances.

2. Separation of Liability

a. You are no longer married to, or are legally separated from, or have not lived with the non-electing spouse in the same house for an entire year before filing for relief;

b. You filed a joint return that has an understatement of tax due, in part, to an item of the non-electing spouse;

c. The burden of proof is on the IRS to prove that you actually knew of an item giving rise to the understatement; and,

d. It is unfair to hold you liable for the understatement of tax, taking into consideration all of the facts and circumstances.

3. Equitable Relief

a. You do not qualify for innocent spouse relief or separation of liability; and,

b. You are now divorced from or deserted by your spouse.

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