Why Choose Our Innocent Spouse Relief Lawyer?
We know you have choices when it comes to attorneys. We believe you should choose innocent spouse relief attorney Timothy S. Hart because of his nearly 25 years of legal experience focusing specifically in tax matters and his track record of achieving beneficial IRS and NYS tax outcomes for his clients. He is not only a highly effective tax attorney, he is also a skilled Certified Public Accountant. Timothy S. Hart has an A+ rating with the Better Business Bureau. You can trust him for his honesty, professionalism and responsiveness as he works to try and get you an innocent spouse relief solution or other resolution to your tax problem.
Types of Innocent Spouse Relief
Innocent spouse relief provides individuals who filed joint returns relief from liability for additional taxes owed when their spouse or former spouse filed a fraudulent or incorrect return either by failing to report income, reporting income improperly, or claiming improper deductions or credits.
There are three types of IRS innocent spouse relief as the term is commonly understood. They include general innocent spouse relief, separation of liability relief and equitable relief.
General Innocent Spouse Relief
This type of relief is for taxpayers who were included on a joint return that was filed with an understatement of tax. The understatement must be only because of the spouse reporting something incorrectly, such as their income, deductions, expenses or credits. It must be established that when the return was filed, the taxpayer seeking innocent spouse relief had no knowledge of the understatement or reason to know that the taxes were understated. It would be unfair to hold the taxpayer liable for the tax understatement after reviewing the facts and information provided.
Separation of Liability Relief
Under this method of innocent spouse relief, the taxpayer separates their income, deductions, and expenses from their ex-spouse’s income, deductions, and expenses. With this method, the taxpayer will need the help of an experienced tax attorney who can prove that they are paying the correct amount of joint tax. The tax allocated to the taxpayer is what they are responsible for. You must meet one of the following requirements at the time of the request to qualify:
- You are divorced or legally separated from your spouse with whom you filed.
- You have not lived in the same house with your spouse at any time during the previous year ending on the date you file for relief.
- You are a widow or widower.
- You did not have knowledge of the item that caused the tax deficiency when you signed the return, unless you have proof you signed under duress.
Equitable Relief
Equitable relief is for taxpayers who do not qualify for general innocent spouse relief or separation of liability relief. This type of relief may be granted in cases of understated tax on the income tax return and on the underpayment of tax owed on the tax return. The main requirement is that you can prove that it would be unfair to hold you liable for the tax balance owed and that it would cause you economic hardship. It is also usually a condition of this relief that you and your spouse or ex-spouse did not transfer assets between you. In the case of underpayment of the taxes owed, the IRS will also examine whether you had knowledge of the circumstances or had a reason to know the taxes were not being paid.
Additionally, the IRS will consider your level of education, your involvement in the activity that caused the tax debt, your business expertise and your involvement with the household finances. Other factors they may examine include whether your spouse abused you (physically or mentally) and whether you were in poor health at the time the tax liability originated.
Filing for Innocent Spouse Relief
Taxpayers may request innocent spouse relief within two years after the date the IRS starts collection activity. Interested individuals must file Form 8857, the Request for Innocent Spouse Relief. The multi-page form asks numerous in-depth financial and personal questions to determine eligibility. The request will require documents to be submitted as well, to validate the claim and help prove that the tax liability should be solely on the non-requesting spouse.
For example, if a person is claiming domestic abuse as a reason for not questioning their spouse’s information on the joint return, they could include medical reports, witness statements, injury photographs or other evidence of abuse. The good news is that you don’t have to file a separate form for different tax years—one form can cover multiple years.
Don’t Wait to File When You Learn of an Increased Tax Liability
The form should be filed as soon as you are aware that the IRS is increasing your tax liability. This can be done when the IRS sends you a notice or if the IRS is examining a past return and proposing a tax increase. Filing out the extensive form should be done carefully and accurately, preferably with the help of an experienced innocent spouse relief lawyer who will ensure that the information you provide most advantageously explains your circumstances.
Timothy S. Hart has spent years resolving complex IRS tax problems, including helping taxpayers get relief from their spouse’s tax debt. He is licensed to practice before the IRS in all 50 states and before the New York State tax department.
You can arrange a free, no-obligation consultation with him by calling our Albany office at (518) 213-3445 or our NYC office at (917) 382-5142.
Learn About Relief
Common Questions about Innocent Spouse Relief
The innocent spouse relief process can be quite lengthy. After Form 8857 is submitted to the IRS, it can take up to six months before a decision is made. During this time, the IRS will carefully review the taxpayer’s provided information, including contacting the non-requesting spouse about the incorrect or fraudulent income tax return or returns.
By law, the IRS must contact the non-requesting spouse, even if there are claims of spousal abuse or domestic violence. The IRS contacts the non-requesting spouse to let them be involved in the process and will inform them of determinations regarding the request for relief. The IRS does not disclose to the non-requesting spouse any personal information that does not relate to the determination.
If you don’t qualify for general innocent spouse relief, separation of liability relief or equitable relief and you are unable to afford to pay the additional taxes, penalties and interest owed, you could potentially get a tax settlement that will allow you to pay less than the amount owed or qualify for an installment payment agreement. Speak to our back taxes attorney to learn about your potential options.
Individuals who are married and file joint returns with their spouse and later divorce can still be audited by the Internal Revenue Service or New York State for a return filed when they were married, because it often takes the IRS or state a year or more before they select returns to audit. Innocent spouse relief is typically for individuals who want to separate their taxes from their ex-spouse and were unaware that their spouse underpaid the taxes on their return.
If the IRS audits a taxpayer and their ex-spouse, both may be found liable and face monetary penalties. For example, the IRS can find unreported income during the audit investigation and assess additional taxes. Even when the income that caused the additional tax belongs to the ex-spouse, both spouses can be found responsible since the tax return was filed jointly. The IRS can choose to initiate collection actions against the taxpayer, their ex-spouse or both. The IRS usually proceeds against both individuals on an audit for a married filing jointly return, even if the couple is divorced.
If you are divorced and facing more taxes and penalties because your spouse provided erroneous information on a joint tax return, contact our innocent spouse relief lawyer Timothy S. Hart to learn about possible solutions to your problem.
Innocent Spouse Relief in New York
New York State also provides innocent spouse relief options for state taxpayers. Innocent spouse relief in NYS is similar to IRS relief and includes the following:
- Innocent spouse relief
- Separation of liability relief
- Equitable relief.
New York residents fill out Form IT-285 to request relief. The form asks about your participation in preparing and filing taxes, whether you knew about inaccuracies in the return, whether you also filed for federal relief and other questions. If you need state tax relief, our attorney can assist you in filing your request to ensure it makes a strong case for relief.
Injured Vs. Innocent Spouse Relief
The IRS offers both innocent and injured spouse relief. Although the names are similar, these two types of relief serve very different purposes. Innocent spouse, as explained above, is to provide relief to taxpayers whose spouses or former spouses understated their tax on a joint return (or a separate return in a community property state).
Injured spouse relief is for taxpayers whose refunds were seized due to their spouse’s tax debt. In New York, the DTF refers to injured spouse relief as nonobligated spouse relief.
Contact Timothy S. Hart for Help When Your Spouse Has Filed a Fraudulent or Incorrect Joint Return
Requesting innocent spouse relief can be complicated because of the level of detail of information that you must provide. Timothy S. Hart can help you understand the information that tax authorities want and guide you in providing the evidence necessary to prove that you qualify for relief and that any tax liability from incorrect or false returns is squarely the responsibility of your spouse. Convincing the IRS or state authorities is not always easy, but you stand a much better chance of success with an experienced tax attorney at your side.
Contact our law firm today to arrange a free consultation by calling our Albany office at (518) 213-3445 or our New York City office at (917) 382-5142.
Timothy S Hart, the founding partner of the tax law firm of Timothy S. Hart Law Group, P.C. is both a New York Tax Lawyer & Certified Public Accountant. His area of expertise includes innovative solutions to solve your Internal Revenue Service and New York State tax problems, including tax settlements through the Federal and New York State offer in compromise programs, filing unfiled tax returns, voluntary disclosures, tax audits, and criminal investigations. [ 
