Innocent Spouse

If you filed a joint return with your spouse, you are considered “jointly and severally liable.” ¬†What this means is that you are both fully liable for the tax shown on the return. ¬†Even if your spouse dies, or you later become divorced, you are still completely liable for the debt. ¬†It is possible to have the liability completely dismissed or “severed” if you file for innocent spouse relief. ¬†If the liability is removed by an innocent spouse claim, you will no longer be responsible for any of the debt. If the liability is severed, you will only be liable for the portion of the tax that is due from your own income rather than the tax due for both you and your spouse.

There are three types of innocent spouse claims. ¬†With all three types of relief, you must have filed your return as “married-filing-jointly.

For the first type of innocent spouse relief, the IRS must claim that you owe more in taxes than you showed on your return, AND you must not be aware of the mistake on the return when you filed it, AND the mistake was the fault of your spouse AND it would be unfair to hold you responsible for the mistake.  This usually occurs when your spouse forgot to claim income or expenses on the original return and the IRS sends you a letter stating that additional taxes are due because of the omitted income.  Even if you knew that the tax amount was wrong, but were unaware of the amount, it might be possible to obtain partial relief from the debt.  You have a very limited amount of time in which to file this type of claim, so you need to act quickly if you think that you might be a candidate for this type of relief.

For the second type of innocent spouse claim, the liability for the tax debt is severed.  This means that you will be responsible only for the taxes due from your own earnings and not those of your spouses.  To obtain this relief, you must be divorced, legally separated or have lived apart for at least 12 months AND the IRS is claiming that you owe more than was shown on the return that you filed.  You may not file this type of innocent spouse claim if you have already payed the tax or you knew the return was wrong when you signed it.  You have a very limited amount of time in which to file this type of claim also, so you need to act quickly if you think that you might be a candidate for this type of relief.

The final type of innocent spouse claim is known as Equitable Relief.  With an equitable relief claim, the IRS will consider the fairness of making you pay the tax.  The IRS will consider many factors.  The IRS will consider all of the following in determining whether you are a candidate for Equitable Relief:

1.  you are or were the victim of domestic abuse;

2. you had a serious medical problem that may have resulted in your inability to properly review the return or you are currently experiencing medical challenges that would prevent you from being able to meet your necessary living expenses and/or are unable to pay the debt;

3. you speak English as a second language;

4. the back taxes were all on income earned by your spouse;

5. you have a divorce decree that states your spouse is responsible for the tax debt;

6. you can’t pay your necessary living expenses;

7.  any other facts or circumstances that might indicate that it would be unfair to force you to pay for the tax debt.


Innocent spouse claims are very complicated.  There are statutes of limitations that might limit your ability to make this type of claim.  Also, making an innocent spouse claim will not relieve your spouse or former spouse of the liability.  The IRS will notify your spouse that you have filed the claim, and this may pose a problem if you are the victim of domestic abuse.  Please contact us if you are considering filing an innocent spouse claim.  We will assist you in determining whether you can substantiate the various requirements to file this type of claim, and we will do so in a way that will protect your interests.


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