Innocent Spouse Relief

If you are divorced or separated and are facing an audit of a previously filed return, filed as a joint return with your now ex-spouse, the IRS will view both parties as equally responsible for the unpaid liability. If the return was prepared by your spouse and you were unaware of the errors on the return, you may be able to use the "innocent spouse defense" to avoid paying penalties, interest, and the tax debt.

To qualify for innocent spouse relief, you must meet all of the following conditions:

You must have filed a joint return which has an understatement of tax;

The understatement of tax must be due to erroneous items of your spouse;

You must establish that at the time you signed the joint return, you did not know, and had no reason to know, that there was an understatement of tax;

Taking into account all of the facts and circumstances, it would be unfair to hold you liable for the understatement of tax; and

You must request relief within 2 years after the date on which the IRS first began collection activity against you.

Separation of liability applies to taxpayers who are (1) no longer married, (2) legally separated, or (3) living apart for the 12 months prior to the filing of a claim. Under this rule, you are no longer married if you are widowed. 

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