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Innocent Spouse Questions and Answers A brief look at the issue of spouse tax problems, this Q & A answers many of the IRA's most frequently asked questions * * * Q. What is the effective date of the new innocent spouse rules under IRC 6015? A. IRC 6015 innocent spouse rules are effective for:
Q. What is joint and several liability? A. Many married taxpayers choose to file a joint tax return because of certain benefits this filing status allows. Both taxpayers are jointly and individually responsible for the tax and any interest or penalty due on the joint return even if they later divorce. This is true even if a divorce decree states that a former spouse will be responsible for any amounts due on previously filed joint returns. One spouse may be held responsible for all the tax due. Q. How can I get relief from joint and several liability? A. Relief now falls into three categories: Innocent Spouse Relief; Separation of Liability; and Equitable Relief. Each of these kinds of relief has different requirements. They are explained separately below. Q. Can both spouses request relief? A. Yes, each spouse can file a Form 8857 to request relief from liability from tax, interest and penalties. Q. Does the non-requesting spouse have any appeal rights? A. The non-requesting spouse has no appeal rights, unless that spouse files his/her own claim. If relief is denied and the requesting spouse petitions the U.S. Tax Court, the non-requesting spouse, by law, will be given the opportunity to be a party in that proceeding. Q. Will the other spouse be notified that I filed a claim for innocent spouse relief? A. The IRS is required to notify the non-requesting spouse to allow them to participate. They will also be notified of the determination on your election although they cannot protest it. Q. What are the rules for Innocent Spouse Relief? A. To qualify for innocent spouse relief, you must meet all of the following conditions:
Q. What are erroneous items? A. Erroneous items are any deductions, credits, or bases that are incorrectly stated on the return, and any income that is not reported on the return. Q. What is an understatement of tax? A. An understatement of tax is generally the difference between the total amount of tax that should have been shown on your return and the amount of tax that was actually shown on your return. For example, you reported total tax on your 1996 return of $2,500. IRS determined in an audit of your 1996 return that the total tax should be $3,000. You have a $500 understatement of tax. Q. Will I qualify for innocent spouse relief in any situation where there is an understatement of tax? A. No. There are many situations in which you may owe tax that is related to your spouse, but not be eligible for innocent spouse relief. For example, you and your spouse file a joint return that reports $10,000 of income and deductions, but you knew that your spouse was not reporting $5,000 of dividends. You are not eligible for innocent spouse relief when you have knowledge of the understatement. Q. What are the rules for Separation of Liability? A. Under this type of relief, you divide (separate) the understatement of tax (plus interest and penalties) on your joint return between you and your spouse. The understatement of tax allocated to you is generally the amount of income and deductions attributable to your earnings and assets. To qualify for separate liability, you must have filed a joint return and meet either of the following requirements at the time you file Form 8857:
Q. Why would a request for separate liability be denied? A. Even if you meet the requirements listed above, a request for separate liability will not be granted in the following situations:
Q. If a husband and wife are still married but separated for 12 month, prior to filing a claim for relief due to an involuntary reason such as incarceration or military duty, can separation of liability relief be granted? A. Separation of liability applies to taxpayers no longer married, separated, or not living together for a period of 12 or more months preceding the filing of a claim. A claim can be filed if any of the three statutory requirements are met.
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