9.3.3 Separation of Liability

A separate tax liability election under § 6015(c) is available for a taxpayer who, at the time of election, is no longer married to or has been living apart for at least 12 months from the person with whom the taxpayer originally filed a joint return.

To elect this relief, a taxpayer must prove that a portion of the understatement was attributable to the other spouse. A taxpayer can’t use § 6015(c) for an underpayment of tax liability.1  The determination of separate liability is made without regard to community property rights. Thus, taxes are based on the electing taxpayer’s own income as if the taxpayer had filed a separate married return. If the taxpayer had no income, the tax liability will be zero.

Taxpayers are often successful under § 6015(c). Relief is easier to obtain under § 6015(c) than under § 6105(b) because the IRS can only deny apportioned liability under § 6015(c) if it proves actual knowledge of an erroneous item, as distinguished from a mere “reason to know.”2

• 1Hopkins v. Comm’r, 121 T.C. 73, 88 (2003).
• 2Generally, the burden of proof is on the taxpayer for innocent spouse relief with the exception of the requirement that the IRS must prove actual knowledge to deny apportioned liability under § 6015(c). See, e.g., Culver v. Comm’r, 116 T.C. 189 (2001).