Past Due Taxes/New Spouse

My very light take on the situation ;)

TLDR; The Innocent Spouse Relief relief applies only to liability that may arise from a joint return filed with the spouse/ex-spouse. If the taxpayer wants to protect the new spouse's refund, *they should consider filing separate returns*, as the new spouse will not be held liable for the past taxes owed by the other spouse.

When a taxpayer owes past-due taxes, it's important to understand how that debt may affect your current tax situation, particularly if you have a new spouse. One of the options that may be available to you is to file a joint return with your new spouse and use Form 8857, which is called the Request for Innocent Spouse Relief.

Filing a joint return with your new spouse can be beneficial, as it may result in a lower tax liability than if you filed separate returns. However, it's important to understand that if you file a joint return, the IRS may take your joint refund to apply towards your past-due taxes. Form 8857 can be used to request relief from the joint liability, which can protect your new spouse from being held liable for taxes that you owe from a prior year.

The other option is to file separate returns, which can also protect your new spouse from being held liable for your past-due taxes, but it may result in a higher tax liability for both of you.

It's important to note that the IRS has strict rules for Innocent Spouse Relief and not everyone qualifies for it.

Innocent Spouse Relief is a rule that allows a taxpayer to be relieved of responsibility for paying taxes, penalties, and interest on a joint tax return if certain conditions are met. The rule applies when a taxpayer files a joint return with a spouse or former spouse, and the tax liability on the return is due to errors or omissions made by the other spouse or former spouse.

To qualify for Innocent Spouse Relief, the following conditions must be met:

• The taxpayer must have filed a joint tax return on which there is an understatement of tax, meaning there is an unpaid tax that is due to errors or omissions made by the other spouse or former spouse.

• The taxpayer must have had no knowledge or reason to know of the errors or omissions when the joint return was filed.
• Holding the taxpayer liable for the unpaid tax would be unfair considering all the facts and circumstances, including the marital and economic relationship between the taxpayer and the other spouse or former spouse.

Examples of situations where Innocent Spouse Relief may apply include:

• A spouse or former spouse who is self-employed or in business for themselves under-reports their income on a joint return, and the other spouse had no knowledge of the under-reporting.

• A spouse or former spouse claims false deductions or credits on a joint return, and the other spouse had no knowledge of the false claims.
• A spouse or former spouse fails to report all of their income on a joint return, and the other spouse had no knowledge of the unreported income.

It is important to note that there are different types of Innocent Spouse Relief, including Separation of Liability Relief, Equitable Relief, and Relief by Reason of Economic Hardship. The type of relief that is available will depend on the specific circumstances of the taxpayer's situation.

It is also important to know that even if the Innocent Spouse Relief is granted, the relief applies only to the taxes, penalties and interest associated with the joint tax return, not to any other liability that the taxpayer may have such as child support or alimony.

There is a form 8857 which is used for requesting Innocent Spouse Relief, and *it should be filed within 2 years from the date of the first collection activity*, otherwise the relief may be denied.

Form 8857, Request for Innocent Spouse Relief

Form 8857, Request for Innocent Spouse Relief, is used by individuals who believe they should not be held liable for a tax debt incurred by their spouse or former spouse.

The IRS's Innocent Spouse Relief program is designed to provide relief to individuals who are facing financial hardship as a result of a tax debt incurred by their spouse or former spouse. To be eligible for relief, the individual must meet certain criteria, including:

The individual must have filed a joint tax return with their spouse or former spouse The individual must not have known or had reason to know that their spouse or former spouse was not reporting all of their income or claiming improper deductions or credits The individual must suffer significant economic hardship if the tax debt is not relieved Examples of situations where Innocent Spouse Relief may apply include:

A stay-at-home spouse who did not participate in the financial decisions of the household and did not know that their working spouse was not reporting all of their income A spouse who was in an abusive relationship and was not able to review or question their spouse's financial decisions A spouse who was not aware that their spouse was claiming improper deductions or credits on their joint tax return You can find the Form 8857 on the IRS website:

They can file a joint return with Form 8379, not Form 8857. Form 8379 can be included with the return. His new spouse is the injured spouse.

But you said "He doesn't mind paying the tax." If he pays the tax that he owes, then he doesn't have to worry about any refunds being taken.

Bob Sandler

Thanks Bob. That's exactly the answer I needed.