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.