-
FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
By continuing to use this site, you are consenting to our Terms of Service and use of cookies.
Innocent spouse husband
- Thread starter paratrp85
- Start date
Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills Please click a topic or scroll down for more.
Just Blue
Senior Member
Just Blue
Senior Member
Were these taxes owed from when they were married?
If you could explain the situation, it would be helpful.
I have also tagged a site vetted Tax Attorney and a Tax Professional to assist you.
@Taxing Matters @LdiJ
Taxing Matters
Overtaxed Member
Assuming that the taxes at issue here are from jointly filed federal income tax returns then both your wife and her late ex husband were each jointly and severally liable for paying the tax. This means that the IRS may collect what is owed from either one of them. It could even collect all of it from just one spouse. Keep that in mind when reading through the rest of my reply..
Her late ex husband's estate would still be liable for any joint income taxes they had that are still owed. In that case, your wife would contact the IRS to make sure it knows of the probate proceeding, which will allow the IRS to make a claim against the estate for taxes owed. If the estate is closed and the assets distributed the IRS may look to the beneficiaries of the estate to pay up what they received from the estate.
What you could have done is submit to the IRS an injured spouse claim on IRS Form 8379. When the IRS gets that form it computes how much of the refund is attributable to you and what part is attributable to your spouse. Then the IRS refunds your portion to you and only takes her portion of the refund to apply to those joint incomes she owed with her late ex husband. If the two year period to file the Form 8379 has not yet passed for one or more of the tax periods you had with refunds you may still do that now and claim your share of the joint refund you would have had with your spouse.
If the divorce decree or settlement between your wife and her late ex husband specified that he was to pay those outstanding tax liabilities and the estate is still open, your wife may yet be able to make a claim against the estate for it to repay you both those refunds that that were taken because he failed to follow the order. She'd want to see a probate attorney in the state where the estate is being probated to see if that's possible and if so, how to pursue it. This is the remedy that is available against the estate, not a lawsuit. It's also faster and cheaper to submit a claim to the estate that it would to sue the estate. Only if the estate was able to pay the and refused to do would a lawsuit against the estate be needed in most states. Note that the claim must be filed within the period the probate law sets for creditor claims.
If any of those joint income tax liabilities are still owed the executor has the responsibility to pay that before distributing assets to beneficiaries. Assuming the estate has the assets to pay it, that should at least get what is left paid so you don't have this problem in the future.
Bottom line here is that you may want to see a probate attorney to see what options there may be to get the estate to pay some or all of the refunds that were taken and if you are eligible to do so, file the Form 8379 injured spouse claim with the IRS (and the state, too, if it has a similar option) to at least get back your share of those refunds.
AlmostThere
Member
I am confused. It sounds like you are the innocent spouse who should be protected from any tax debt your wife and her ex jointly owe.
Are you saying she is also an innocent spouse? And is paying taxes that she does not owe based on this:
https://www.irs.gov/individuals/innocent-spouse-relief
Are you saying she is also an innocent spouse? And is paying taxes that she does not owe based on this:
https://www.irs.gov/individuals/innocent-spouse-relief
Taxing Matters
Overtaxed Member
He's not an innocent spouse. He is an injured spouse with respect to the joint tax return refunds he had with his spouse, which is why I suggested that he submit an injured spouse claim for any returns that are still within the 2 year period for making that claim.
There is no indication that she is an innocent spouse. More information would be needed to determine that. In order for her to be an innocent spouse her ex husband must have either left income he had off the return or inflated his deductions and she would have had to be unaware of that when the return was signed. This most often occurs in self-employed situations where her husband either didn't report all the business income on Schedule C or claimed inflated deductions on the Schedule C. Schedule C is the form used for reporting self-employment income. There are other forms of spousal relief too. As we don't know the details of the return, it's impossible to say whether she might qualify for any of the three forms of spousal relief on a joint income tax return: innocent spouse, injured spouse, and/or equitable relief. All three are discussed in detail in IRS Publication 971. But those are things she would have to deal with to get back the offset refunds from the joint returns with the OP. All the OP may do for himself is file his own injured spouse claim to get back his share of the joint income tax refunds.
This is something that really should have been addressed in the divorce she had from her late ex-husband by ordering the ex husband to pay what was owed. If there is such an order and the ex husband's estate is still open and has assets then the easiest way to get paid would ordinarily be to make a claim against the estate to refund the money the IRS took to pay what the court said the ex husband was to pay.
