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© 2001
1.10 Although many taxpayers enjoy substantial tax benefits from filing joint returns, those benefits may be
outweighed when a tax deficiency or unpaid balance is asserted for a return. The general rule is that each spouse
has joint and several liability. The IRS might also offset a current year joint refund to pay a separate obligation of
one spouse. In community property states married individuals face the more onerous duty to pay taxes on ½ of a
spouses income even when they file a married filing separate return. This course will cover three methods to
secure relief from spousal liability. We will cover:
2.10 The IRS Restructuring Act of 1998 provided expanded spousal relief for taxpayers who have filed joint
returns. IRC § 6015 provides three types of relief which depend upon whether the tax liability arose as a
deficiency or as a filed joint return with a balance and upon the current marital status of the of the parties. For
the first time parties may seek equitable relief from joint and several liability on joint returns even when the
liability resulted from a return filed with a balance due. [IRS Publication 971]
Innocent Spouse
2.20 The IRS Restructuring Act of 1998 generally makes innocent spouse relief easier to obtain. The Act
eliminates all of the understatement thresholds of prior IRC § 6013 and requires only that the understatement of
tax be attributable to an erroneous (and not just a grossly erroneous as in the past) item of the other spouse. An
individual will be relieved of liability for tax (including interest, penalties and other amounts) for a tax year to
the extent the liability is attributable to an understatement (understatement and tax deficiency are synonymous)
described below:
. 1. A joint return was filed for the tax year [IRC §6015(b)(1)(A)];
2. There is an understatement of tax on the return that is attributable to an erroneous item by the other spouse
[IRC §6015(b)(1)(B)];
3. A taxpayer establishes that in signing the return he/she did not know and had no reason to know of the
understatement; [IRC §6015(b)(1)(C);
4. Taking into account all of the facts and circumstances, it would be inequitable to hold the taxpayer liable for
the deficiency attributable to the understatement; [IRC §6015(b)(1)(D)]; and
5. A taxpayer elects the benefits of this provision, on the form that the IRS prescribes (Form 8857) , no later than
the date that is two years after the date the IRS has begun collection activities with respect to the taxpayer. [IRC
§6015(b)(1)(E)]
Knowledge
2.30 If an individual who otherwise qualifies for innocent spouse relief fails to establish that he/she did not
know or have reason to know of the understatement, but does establish that he/she did not know or have reason
to know the extent of the understatement, that individual may be relieved of liability for tax, penalties and
interest to the extent that liability is attributable to the portion of the understatement that he/she did not know or
have reason to know.
Example: If the husband and wife file a joint return and the IRS determines the deficiency for the year based on
$15,000 of unreported income attributable to the husband. Wife shows she did not know or have reason to
know of $5,000 of the under-reported income. If the wife otherwise qualifies for any spouse relief, she will be
relieved of joint liability for the portion of the understatement attributable to the $5,000 of omitted income. She
will still remain liable for the taxes due on the $10,000 of omitted income.
Time Deadline
2.60 Expanded innocent spouse relief and the separate liability election must be elected no later than two years
after the date on which the Secretary has begun collection activities with respect to the individual seeking the
relief. The Act provides that the Tax Court has jurisdiction with respect to disputes about innocent spouse relief.
Equitable Relief
2.70 The IRS Restructuring Act further authorizes the Secretary to relieve an individual of liability if relief is
not available under the expanded innocent spouse rules set forth above, if it would be inequitable to hold the
individual liable for any unpaid tax or any deficiency. The expanded innocent spouse relief, separate liability
election, and authority to provide equitable relief apply to liabilities for tax arising after the date of enactment, as
well as any liability for tax arising on or before the date of enactment that remains unpaid on the date of
enactment. A taxpayer who filed a joint balance due return may seek equitable relief.
(1) The requesting spouse filed a joint return for the taxable year for which relief is sought;
(2) Relief is not available to the requesting spouse under S 6015(b) or 6015(c);
(3) The requesting spouse applies for relief no later than two years after the date of the Service's first collection
activity after July 22, 1998, with respect to the requesting spouse;
(4) Except as provided in the next sentence, the liability remains unpaid. A requesting spouse is eligible to be
considered for relief in the form of a refund of liabilities for: (a) amounts paid on or after July 22, 1998, and on
or before April 15, 1999; and (b) installment payments, made after July 22, 1998, pursuant to an installment
agreement entered into with the Service and with respect to which an individual is not in default, that are made
after the claim for relief is requested;
(5) No assets were transferred between the spouses filing the joint return as part of a fraudulent scheme by such
spouses;
(6) There were no disqualified assets transferred to the requesting spouse by the non-requesting spouse. If there
were disqualified assets transferred to the requesting spouse by the non-requesting spouse, relief will be available
only to the extent that the liability exceeds the value of such disqualified assets. For this purpose, the term
"disqualified asset" has the meaning given such term by S 6015(c)(4)(B); and
(7) The requesting spouse did not file the return with fraudulent intent.
A requesting spouse satisfying all the applicable threshold conditions set forth above may be relieved of all or
part of the liability under S 6015(f) or 66(c), if, taking into account all the facts and circumstances, the Service
determines that it would be inequitable to hold the requesting spouse liable for such liability.
Circumstances under Which Equitable Relief Will Ordinarily Be Granted
2.100 In cases where a liability reported on a joint return is unpaid, equitable relief under § 6015(f) will
ordinarily be granted (subject to the limitations of paragraph (2) below) in cases where all of the following
elements are satisfied:
(a) At the time relief is requested, the requesting spouse is no longer married to, or is legally separated from,
the non-requesting spouse, or has not been a member of the same household as the non-requesting spouse at any
time during the 12-month period ending on the date relief was requested;
(b) At the time the return was signed, the requesting spouse had no knowledge or reason to know that the tax
would not be paid. The requesting spouse must establish that it was reasonable for the requesting spouse to
believe that the non-requesting spouse would pay the reported liability. If a requesting spouse would otherwise
qualify for relief under this section, except for the fact that the requesting spouse had no knowledge or reason to
know of only a portion of the unpaid liability, then the requesting spouse may be granted relief only to the extent
that the liability is attributable to such portion; and
(c) The requesting spouse will suffer economic hardship if relief is not granted. For purposes of this section, the
determination of whether a requesting spouse will suffer economic hardship will be made by the Commissioner
or the Commissioner's delegate, and will be based on rules similar to those provided in § 301.6343-1(b)(4) of the
Regulations on Procedure and Administration.
Limitations
2.110 Relief under this section is subject to the following limitations:
(a) If the return is or has been adjusted to reflect an understatement of tax, relief will be available only to the
extent of the liability shown on the return prior to any such adjustment; and
(b) Relief will only be available to the extent that the unpaid liability is allocable to the non-requesting spouse.
(b) Economic hardship. The requesting spouse would suffer economic hardship (within the meaning of section
4.02(1)(c) of this revenue procedure) if relief from the liability is not granted.
(c) Abuse. The requesting spouse was abused by the non-requesting spouse, but such abuse did not amount to
duress.
(d) No knowledge or reason to know. In the case of a liability that was properly reported but not paid, the
requesting spouse did not know and had no reason to know that the liability would not be paid. In the case of a
liability that arose from a deficiency, the requesting spouse did not know and had no reason to know of the items
giving rise to the deficiency.
(e) Non-requesting spouse's legal obligation. The non-requesting spouse has a legal obligation pursuant to a
divorce decree or agreement to pay the outstanding liability. This will not be a factor weighing in favor of relief
if the requesting spouse knew or had reason to know, at the time the divorce decree or agreement was entered
into, that the non-requesting spouse would not pay the liability.
(f) Attributable to non-requesting spouse. The liability for which relief is sought is solely attributable to the
non-requesting spouse.
(a) Attributable to the requesting spouse. The unpaid liability or item giving rise to the deficiency is attributable
to the requesting spouse.
(b) Knowledge, or reason to know. A requesting spouse knew or had reason to know of the item giving rise to a
deficiency or that the reported liability would be unpaid at the time the return was signed. This is an extremely
strong factor weighing against relief. Nonetheless, when the factors in favor of equitable relief are unusually
strong, it may be appropriate to grant relief under S 6015(f) in limited situations where a requesting spouse knew
or had reason to know that the liability would not be paid, and in very limited situations where the requesting
spouse knew or had reason to know of an item giving rise to a deficiency.
(c) Significant benefit. The requesting spouse has significantly benefitted (beyond normal support) from the
unpaid liability or items giving rise to the deficiency. See S 1.6013-5(b).
(d) Lack of economic hardship. The requesting spouse will not experience economic hardship (within the
meaning of section 4.02(1)(c) of this revenue procedure) if relief from the liability is not granted.
(e) Noncompliance with federal income tax laws. The requesting spouse has not made a good faith effort to
comply with federal income tax laws in the tax years following the tax year or years to which the request for
relief relates.
(f) Requesting spouse's legal obligation. The requesting spouse has a legal obligation pursuant to a divorce decree
or agreement to pay the liability.
Refunds
2.130 A credit or refund can be obtained under the innocent spouse rules and, under certain circumstances,
under IRS's authority to grant equitable relief to a spouse (amounts paid from 7-22-98 TO 4-15-99). However,
the separate liability election may not be used to create a refund or to direct a refund to a particular spouse.
2.140 Fernandez v. Commissioner, 114 T.C. No. 21; 2000 U.S. Tax Ct. LEXIS 27 (Tax Ct. May 10, 2000).
In a case in which the taxpayer's application was made directly through section 6015, rather than as part of a
section 6213 deficiency proceeding, the Tax Court held it had jurisdiction to review a denial of equitable
innocent spouse relief, assuming the taxpayer made an election under subsections (b) and/or (c).
In March 1999, Diane Fernandez submitted a request for relief from joint and several liability for tax year 1988,
pursuant to section 6015 (b), (c), and (f). The Service denied the request on the ground that she had actual and
constructive knowledge of the capital gains and the tax underpayment. Additionally, the determination letter
advised that Fernandez received a significant financial benefit when she received sales proceeds of more than
$19,000. After Fernandez filed a petition with the Tax Court, the Service moved to dismiss. It argued the Tax
Court had no jurisdiction to review a denial of subsection (f) relief.
Relying on Butler v. Commissioner, 114 T.C. No. 19; 2000 U.S. Tax Ct. LEXIS 25 (2000), the Tax Court said it
did. Initially, the court looked to the prefatory language in 6015(e)(1)("in the case of an individual who elects to
have subsection (b) or (c) apply") and determined the language did not confine the court's jurisdiction to review
of subsection (b) or (c) elections. Instead, it merely sets forth the procedural requirements necessary to obtain
Tax Court jurisdiction for all seeking innocent spouse relief. The court concluded that "before an individual may
petition this Court for review of innocent spouse relief, including relief under subsection (f), such individual must
make an election under subsections (b) and/or (c)." Statutory authority for its jurisdiction over subsection (f)
could be found in 6015(e)(1)(A) which states: "the individual may petition the Tax Court (and the Tax Court
shall have jurisdiction) to determine the appropriate relief available to the individual under this section." The
court interpreted "under this section" to include all subsections of 6015. As did Butler, the court held that the
legislative history makes it clear Congress did not intend to limit its review of 6015.
Previously in Butler, the Tax Court had held that a taxpayer can seek review of a denial of 6015(f) relief in a
section 6213 deficiency proceeding, if he or she applies for relief under subsection (b) or (c). Fernandez is
noteworthy because of its stance concerning "stand-alone" requests for relief.
2. Distinction Between Should Have Known and Actually Knew Gives Rise to 6015(c) Relief.
Charlton v. Commissioner, 114 T.C. No. 22; 2000 U.S. Tax Ct. LEXIS 29 (May 16, 2000).
A former husband was entitled to section (f) equitable relief where he knew of his wife's self-employment
income, but did not actually know of the amount of the omitted income.
In connection with a 1994 joint income tax return, the IRS determined a $15,000 deficiency arising from denial
of deductions related to rental cabins and reallocation of self-employment income from a physician transcription
service which the wife, Sarah Hawthorne, operated. Hawthorne and ex-husband, Fredie Charlton, who divorced
in 1995, separately asserted that they qualified for innocent spouse relief. The Tax Court consolidated the
petitions.
Citing Butler v. Commissioner, 114 T.C. No. 19 (2000), the Tax Court rebuffed the government's contention that
it lacked jurisdiction to decide whether Hawthorne was entitled to equitable relief pursuant to section 6015(f).
Because Hawthorne and the IRS suspended any activity relating to her claim while Charlton's case is pending,
the court indicated she could file a motion to seek Tax Court review if her application is denied. Meanwhile, the
court would delay entry of decision.
With respect to Charlton, the court held that he did not qualify for relief pursuant to section 6015(b). Though
Charlton asserted that he did not know and had no reason to know of the $22,000 understatement of the
transcription service's income, the court observed that he had prepared the income tax return based on summary
information his wife provided to him, and that he had "unfettered access" to the service's financial records which
were maintained in their home.
Nonelecting Spouse Entitled to Challenge Grant of Innocent Spouse Relief to Former Wife
2.41 Corson v. Commissioner, 114 T.C. No. 24; 2000 U.S. Tax Ct. LEXIS 30 (May 18, 2000).
The Tax Court allowed one former spouse to challenge the other electing spouse's claim for relief under section
6015 where both spouses were before the court in the same deficiency case. Under present law, Tax Court
jurisdiction to review innocent spouse claims arise either as an affirmative defense in a 6213(a) deficiency
proceeding or as review of administrative determination regarding relief (or failure to rule) in a "stand alone"
matter. Because Judith's claim was raised as an amendment to the couple's petition for deficiency
redetermination, the court considered her claim within the framework of deficiency jurisdiction.
Nonelecting Ex-Spouse May Intervene in Deficiency Case Where Other Spouse is Claiming 6015 Relief
2.42 King v. Commissioner, 115 T.C. No. 8; 2000 U.S. Tax Ct. LEXIS 52 (Aug. 10, 2000).
The Tax Court held nonelecting spouses are allowed to intervene in any proceeding in which the other spouse is
claiming section 6015 relief.
2.45 Cheshire v. Commissioner, 115 T.C. No. 16; 2000 U.S. Tax Ct. LEXIS 61 (Aug. 30, 2000).
In a split decision, the Tax Court held that in omitted income cases, section 6015(c)(3)(C) does not require
actual knowledge on the part of the electing spouse as to whether the entry on the return is or is not correct.
Pointing to legislative history, three judges dissented.
6015(c)
Kathryn was also not entitled to section 6015(c) relief. Here, the parties disputed whether she had actual
knowledge, at the time the joint return was signed, of "any item giving rise to the deficiency (or portion
thereof)." With respect to the knowledge component of the analysis, the court held that "the statute mandates
only a showing that the electing spouse knew of the item on the return that gave rise to the deficiency," but not
that knowledge of the tax consequences arising from the item or that the item reported on the return is incorrect.
Further, the knowledge standard is an "actual and clear awareness (as opposed to reason to know)" of the item's
existence. To the extent that legislative history arguably suggests otherwise, the court stressed that nowhere does
the statutory language "explicitly state or reasonably imply that relief is denied only where the electing spouse
has actual knowledge that the item giving rise to the deficiency ... is incorrectly reported on the return."
Turning to the meaning of the word "item," the court held that "in omitted income situations 'item' refers to the
item of income that should have been reported on the return." This definition is consistent with that used in other
sections of the Code. Additionally, the court was troubled that acceptance of an ignorance of the tax
consequences (aka law) defense would lead to "potentially any spouse who is not a certified public accountant
or tax attorney would be allowed to escape paying income tax."
6015(f)
The petitioner was entitled to section 6015(f) relief with respect to a portion of the accuracy-related penalty. The
court was satisfied that she believed that the portion of retirement distribution proceeds used to pay off the
mortgage on the family residence would be nontaxable. Further, she acted in good faith inasmuch as she trusted
and relied upon her husband when it came to the preparation of the tax returns, she asked him about the
potential tax ramifications, had no reason to doubt the truthfulness of his statements, and in fact believed him.
The court concluded that "[u]nder these circumstances, we do not believe petitioner had an obligation to inquire
further." Accordingly, she was entitled to relief as to the omitted retirement distribution proceeds, but not as to
the omitted interest income.
Concurrences
There were two concurrences. Judge Chiechi concurred in the result only. In his concurrence, Judge Thornton
construed the majority opinion to reject the Service's argument that actual knowledge of an "item" means actual
knowledge merely of the event or transaction giving rise to the deficiency. Five of the majority judges joined in
this concurrence.
Dissents
There were two dissenting opinions. The first, authored by Judge Parr, stressed that 6015 is a remedial statute
intended to provide broader relief than that provided by section 6013(e). Though agreeing that it was not
inequitable to hold the petitioner liable for the deficiency pursuant to section (f), Judge Parr was troubled that
the majority construed both the term "understatement" in 6015(b) and the word "item" in 6015(c) as
synonymous with "transaction."
In a lengthy dissent, Judge Colvin (joined by Judges Marvel and Parr) protested that the majority's construction
of 6015(c)(3)(C) "squarely conflicts" with the legislative history of 6015(c). Unlike the majority, he found the
phrase "item giving rise to a deficiency" to be ambiguous because it could refer to a transaction or activity or to
knowledge that an entry on a tax return was incorrect. Because of the sweeping changes to the innocent spouse
provisions in 1998, Judge Colvin advocated caution in applying interpretations of the prior law to section
6015(c). Under his reading of legislative history (including four separate items for support), "Congress intended
'actual knowledge' to be knowledge that the return is incorrect." Consequently, the majority disregarded this
requirement inasmuch as it held with respect to section (f) relief that the petitioner thought the reporting of the
distributions on her tax return was correct.
Finally, the dissent disparages the majority's treatment of prior authority. First, reliance on Wiksell v.
Commissioner, 215 F.3d 1335 (9th Cir. 2000)(unpub.), was inappropriate inasmuch as that opinion does not
discuss whether the actual knowledge of any item giving rise to a deficiency refers to incorrect reporting.
Second, the majority's failure to reconcile Charlton v. Commissioner (see above) with Cheshire will "inevitably
cause confusion because, both here and in Charlton, we found that the putative innocent spouse knew of the
activity which gave rise to the deficiency." If the majority intends to promulgate a new standard such that
knowledge of an income-producing transaction does not cause a putative innocent spouse to fail to qualify for
the separate liability election unless the putative innocent spouse knew the amount of income involved, then it
should so state.
“(a) Notice: The Commissioner shall serve notice of the filing of the petition on the other individual filing the
joint return.
(b) Intervention: If the other individual filing the joint return desires to intervene, then such individual shall file
a notice of intervention with the Court not later than 60 days after service of the notice by the Commissioner of
the filing of the petition, unless the Court directs otherwise, and attach to the notice of intervention a copy of
such notice of filing. All new matters of claim or defense in a notice of intervention shall be deemed denied.”
3. INJURED SPOUSE
3.10 Injured Spouse--a person filing a joint return with an overpayment of taxes which is offset by the spouse's
taxes, non-tax debt such as a student loan or back child-support. A claim may be filed to protect the injured
spouse's share of the joint overpayment.
Past-due Support
3.20 A taxpayer who
(a) files a joint return with a spouse who has a past-due tax obligation or support obligation and
(b) has income, prepaid credits from withholding, estimated tax payments, or refundable credits such as the
earned income credit, can recover his portion of a joint overpayment applied against the past-due child support
owed by the other spouse.
Form 8379
3.30 The taxpayer uses Form 8379—not Form 1040X —to file this injured spouse claim. If the joint return
hasn't yet been filed, he should attach Form 8379 to the joint return and write "Injured Spouse" in the upper left
corner of the return. If the joint return has already been filed, he should mail Form 8379 by itself to the Internal
Revenue Service Center where the joint return was filed. If the non-debtor spouse takes appropriate action and
secures his or her proper share of a tax refund from which the offset was made, IRS must request that the
Treasury Department's Financial Management Service (FMS) deduct that amount from amounts payable to HHS
or the state.
Award Of Fees
3.60 A refund due the taxpayer and her ex-husband (H) was applied to a past due child support obligation of
H. Taxpayer filed an Injured Spouse Claim (Form 8379) requesting her portion of the refund. IRS denied
taxpayer's request. The taxpayer was awarded fees because IRS's actions, after the suit was filed, were
"substantially unjustified" because they unnecessarily increased taxpayer's litigation costs by focusing on issues
of jurisdiction and venue rather than examining the merits of the taxpayer's substantive position.
Tax Advantage
4.30 The tax advantage in filing separate returns, where it exists, is seldom large. Many tax cases on community
status in recent years involve separate returns of husband and wife living apart rather than united couples filing
separately for a tax benefit. In one case, married taxpayers who had always filed joint returns tried
unsuccessfully to take advantage of the community property laws. The issue involved cancellation of debt
(COD) income that passed through from a partnership interest that was community property. Taxpayers
excluded most of the COD income under the insolvency exception, Sec. 108, but maintained that the wife
shouldn't have to reduce her allocated portion of an NOL carryover by any of the excluded income because
COD income wasn't considered "income" under local (TX) community property law. The Tax Court rejected the
argument, pointing out that federal law defines what is "income" for federal tax purposes.
§ 66 Standards
4.50 A married individual who doesn't file a joint return, and omits from his or her gross income his or her share
of community income (determined under the allocation rules of IRC § 879(a), is relieved from income tax
liability on the omitted income if both of these two requirements are met:
(1) The individual must establish lack of knowledge or reason to know of the omitted item,
(2) Under all the facts and circumstances it would be inequitable to include the item of community income in the
individual's gross income. In this case, the item will be included only in the other spouse's gross income (and not
in the gross income of the individual).
Knowledge Of Amount
4.90 A taxpayer's knowledge of an item of community income must be determined with reference to her
knowledge of the particular income-producing activity. The exact amount of the item isn't determinative. Thus, a
claim that the innocent spouse didn't know the specific amount of the unreported community income was
irrelevant in meeting the above two requirements.
No Reason to Know
4.100 The "no reason to know" prerequisite wasn't met where the taxpayer-wife actively participated (as a
bookkeeper) in her husband's businesses that generated the unreported community income. The requirement also
wasn't satisfied where a music teacher knew and participated in her husband's real estate activities. Her
participation consisted of acting as a nominee on her husband's behalf in various real estate transactions,
attending real estate closings, and signing various documents. The couple's move from a moderate residence to a
home costing more than $300,000 should have made the wife aware of the improvement of their living
conditions and therefore the income from the community real estate.
Lack of Knowledge
4.110 The lack of knowledge requirement also wasn't met where the taxpayer-wife knew that the husband was
a full-time employee, or was engaged in income-producing business activities. Thus, where a taxpayer/wife
knew about her husband's income from his steel business, the requirement wasn't met. Contrary to her testimony
that she believed that the business was having financial difficulties, the wife knew that her husband, whose sole
source of income was his steel business, was able to make $2,000 a month child support payments to her and
mortgage payments on her property during the entire year in issue.
Illegal Income
4.120 However, where the taxpayer-wife believed that her husband was only in a legitimate occupation but the
husband's unreported community income was derived from illegal activities (such as narcotic trafficking or
embezzlement), the Tax Court won't attribute knowledge of the illegal activity or a portion of the income from
the illegal activity to the taxpayer-wife without evidence that either the marital community or the taxpayer-wife
benefitted from the unreported community income. The same rule was applied to relieve a taxpayer-wife from
tax liability on unreported interest income from secret certificate of deposits of her husband.
Observation: Because of the current Code relief provisions: one for spouses living apart; the other for "innocent
spouses", the much harder-to-prove theft loss deduction issue is little used. However, in appropriate cases it is
still available.