If domestic violence is an issue facing your client, the economic advantages of a joint return will probably be outweighed by the economic disadvantages and the threat to your client’s security. A joint return makes the survivor jointly liable for taxes. Because many abusers exercise significant financial control in the relationship, a client suffering from domestic violence may also lack access to the financial information necessary to sign a joint return.

A client who has been separated for the last 6 months of the year may be able to claim the favorable head-of-household tax rates and the Earned Income Credit. These additional tax refunds could help a victim secure financial independence.

Resolution of divorce and custody litigation before the end of a tax year may strengthen a survivor’s rights to head-of-household tax rates, the Earned Income Credit, and dependency exemptions. A court decree allowing the survivor the use of the marital home may help her qualify for these tax benefits. A survivor of domestic abuse in Louisiana should be encouraged to seek relief under the Post-Separation Family Violence Relief Act.1

• 1For a more complete discussion of the Post-Separation Family Violence Relief Act, see this manual's chapter on representing survivors of domestic violence.

Domestic violence survivors often find themselves saddled with large tax debts due to their spouse’s concealment of income (self-employment and gambling income are easy to conceal), failure to file tax returns, or failure to pay taxes. Southeast Louisiana Legal Services regularly sees domestic violence survivors assessed with $30,000 to $40,000 in tax debt for their spouse’s income.

Ask if the survivor knows whether prior tax returns have been filed or whether any notices have been received from the IRS. Abusers may forge the survivor’s signature or may force the survivor to sign a return without seeing it. After separation or relocation, a survivor should file a Form 8822 with the IRS to receive deficiency notices relative to prior joint returns.

A survivor may be able to avoid or minimize liability for a past tax return through either innocent spouse relief, separate liability limitation, or equitable relief.1  Abuse and threats of violence are factors that may strengthen a Form 8857 application for innocent spouse or equitable relief.2  The survivor should be encouraged to report abuse to law enforcement and keep a copy of the report. The survivor should also be encouraged to seek protective orders or restraining orders when possible. Such orders are strong evidence of abuse. A divorce decree requiring the other spouse to pay the tax also helps a claim for equitable relief.3

Innocent spouse relief may be applied for by filing a Form 8857. Unfortunately, due to a quirk in the law, judicial review of “stand alone” § 66(c) equitable relief determinations does not exist for spouses in community property states filing separate returns.4  However, Tax Court review may be obtained if the innocent spouse claim is raised in a collection due process appeal or as an affirmative defense to a deficiency notice.5  In addition, a survivor may ask for an appeal to the IRS Appeals Office6  or for reconsideration for denied innocent spouse determinations.7  The reconsideration option is available for survivors who have missed their appeal deadlines and is similar to an audit reconsideration.

The IRS protects domestic violence victims who apply for innocent spouse relief. A domestic violence survivor who fears that filing a claim for innocent spouse relief would result in retaliation should write “Potential Domestic Abuse Case” at the top of the Form 8857. If the IRS has notice of domestic violence, it will not release to a current or former spouse information relative to a new name, employer phone number, or other information that could endanger the safety of a domestic violence survivor. If in Tax Court, ask that records be sealed to prevent survivor’s address from being released.

• 1For a discussion of these methods of protecting an innocent spouse, see Section 9.3.
• 2See Kistner v. Comm’r, 18 F. 3d 1521 (11th Cir. 1994); Rev. Proc. 2003-61.
• 3Rev. Proc. 2003-61.
• 4See Bernal v. Comm’r, 120 T.C. 102 (2003); I.R.C. § 66 (c).
• 5Felt v. Comm’r, T.C. Memo 2009-245.
• 6See Rev. Proc. 2003-19, 2003-1 C.B. 371; IRM 25.15.12 (Appeal Procedures).
• 7I.R.M. 25.15.17.1.

A batterer may threaten to hurt a survivor in order to get the survivor to forgo a dependency exemption or other tax benefits. An abusive intimate partner may steal from a taxpayer’s account and said theft may support a theft loss deduction.1  Explore these issues with your client. Advise any client who has been threatened of any available civil or criminal remedies. If a spouse establishes that a joint return was signed under duress, the return is not a joint return.2

• 1Herrington v. Comm’r, T.C. Memo 2011-73.
• 226 C.F.R. § 1.6013.4; Rev. Proc. 2003-61, 2003-2 C.B. 296, § 2.03.