9.1.1 Spousal Liability

If Louisiana spouses are jointly liable for federal taxes because they filed a joint tax return, the IRS may collect taxes from either spouse’s separate property and from any of their community property.1

In some cases, only one spouse may owe the tax liability. This situation may arise when one spouse incurred a pre-marital tax debt, the spouses did not file a tax return, the spouses filed separate returns, one spouse qualified for innocent spouse relief, or one spouse incurs self-employment tax liability.

The IRS may collect a liable spouse’s pre-marital tax debt from all of the liable spouse’s separate property. Because Louisiana is a 100% community property state for tax collection purposes, the IRS can collect a liable spouse’s pre-marital or post-marital tax debt from 100% of the community property.2  Currently, a spouse’s wages, even if the spouses are separated, are community property in Louisiana and may be levied by the IRS to collect a federal tax debt. However, a levy against a non-liable spouse’s wage is not a “continuous levy” under I.R.C. § 6331(e), and so, a separate levy must be issued for each paycheck. A non-liable spouse may also claim the exemptions for levied wages.3

Jointly owned property can be seized by the IRS. However, the IRS must compensate the nondebtor for the value of the nondebtor’s share of the community asset being seized.4  District courts have some discretion under I.R.C. § 7403 to refuse to order a foreclosure sale if the IRS holds a lien on only part of the house.5

• 1I.R.M. 25.18.4.1.
• 2Rev. Rul. 2004-72, I.R.B. 2004-30; I.R.M. 25.18.4.6. In states that are “50% community property” states, the IRS may be limited to collection against 50% of the community property.
• 3I.R.M. 25.18.4.3.
• 4United States v. Rodgers, 461 U.S. 677, 699 (1983); I.R.M. § 25.18.4.1.
• 5Rodgers, 461 U.S. 677; United States v. Jensen, 785 F. Supp. 922 (D. Utah 1992) (harm to terminally ill nondebtor outweighed delay to IRS); United States v. Jones, 877 F. Supp. 907 (D.N.J. 1995) (nondebtor wife kept house in return for paying one-half of the imputed rental value of the property to IRS).