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Feel Like You Are Not Responsible For A Debt Owed By Your Spouse Or Ex-Spouse?



ERIN COLLINS - NATIONAL TAXPAYER ADVOCATE

Taxpayer Advocate Service Tax Tip

Saying “I do” doesn’t necessarily mean you’re responsible for your spouse’s or ex-spouse’s debts.

If your spouse has a debt (this debt could be for any number of things – child support, spousal support, a federal debt (e.g., student loans), or a federal tax debt) and you file your taxes using the Married-Filing-Joint tax filing status, the IRS can apply your refund to one of these debts, which is known as an “offset”. Or they can take a collection action against you for the tax debt you and your spouse owe, such as filing of the Notice of Federal Tax Lien or issuing a levy. However, if you’re not legally responsible for the past-due amount, you may still be entitled to receive your share of the refund or request relief from joint and several liability, depending on the facts of the situation.

In some situations, you may agree that you are responsible for the debt. If this is the case, you can either do nothing and let the refund be applied or if that doesn’t cover the entire debt, you can seek payment options with the agency the debt is owed to.

But if you feel you are not responsible for the debt, there are two way to request relief – through Injured Spouse and Innocent Spouse Procedures.

  1. An injured spouse status involves obtaining a refund of a spouse’s interest in an overpayment that has been offset by the IRS. See IRC Section 6402.
  2. Innocent spouse status relieves a spouse of the responsibility for paying taxes that are owed jointly and severally with the other spouse. See IRC Sections 66 and 6015.

Below is short introduction of the two procedures for which you may be eligible based on your particular facts and circumstances:

Injured Spouse: You can request that you be treated as an injured spouse, if you filed a joint tax return and all or part of a refund is taken to pay a debt owed only by your spouse and not you. See the Injured Spouse page for step-by-step instructions for filing this claim and what information is needed. We also have a short video that explains what injured spouse means and when to file a claim.

Innocent Spouse: In general, if you file married filing jointly both of you are responsible for federal taxes owed. This is called joint and several liability, meaning the IRS can collect a joint liability from either you or your spouse even if you’ve divorced after you filed a joint tax return.

However, for instances involving individual earned income or self-employment taxes only, by requesting innocent spouse relief, you can be considered for relief of responsibility from paying tax, interest, and penalties, if your spouse (or former spouse) improperly reported items or omitted items on your tax return. For example, Household Employment taxes, Individual Shared Responsibility payments, and business taxes and trust fund recovery penalty for employment taxes are not eligible for innocent spouse relief.

The three types of relief available are:

  • Innocent spouse relief
  • Separation of liability
  • Equitable relief

Each type of relief has different requirements. See IRS Publication 971 for more information.
If you still can’t find the information you need in Publication 971, see these other resources to help you determine if you should file for Innocent Spouse relief:

If you file an Innocent Spouse claim, but the IRS denies your claim and you still disagree, see Appeal an Innocent Spouse Determination for next steps to take.

Additional Help

In either of the above situations, if you have taken the required steps and filed the proper claim information timely, but you are still unable to resolve the issue, see if you qualify for help from the Taxpayer Advocate Service.

National Taxpayer Advocate

National Taxpayer Advocate

The Office of the Taxpayer Advocate, also called the Taxpayer Advocate Service, is an office that is independent of the Internal Revenue Service, the United States Government’s tax collection agency, although the two bodies often work closely together.

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