What is commonly referred to as “innocent spouse relief” is actually three distinct types of possible statutory relief from the usual “joint and several liability” of a spouse who elects to file a joint return with his or her mate or former mate (if they were still married at year’s end but divorced afterwards). These escape hatches are:
Innocent spouse relief (Internal Revenue Code (IRC) Section 6015(b) – Available even if spouses still married but carries a higher burden of proving innocent spouse “did not know and had no reason to know.”
Election to allocate a deficiency (IRC Sec. 6015(c) – Available to a divorced spouse who lacked “actual knowledge” at the time of filing.
Equitable relief (IRC Sec. 6015(f) – Available when ineligible for (b) and (c) type relief (Inequitable to hold innocent spouse liable).
The rules are tricky for escaping under any of the three available routes, and should be read and understood thoroughly by one seeking relief; but, in each case, the requesting spouse may be relieved only from liability attributable to items of the other spouse. Thus, the requesting spouse even when granted relief will often remain liable for a portion of the tax reported as due on the joint return or later assessed.
The IRS then must split out the joint return account between the culpable spouse on the joint return and the innocent spouse (see IRM 126.96.36.199). MFT 31 is the master file account code used by IRS to split the account. Payments by check will normally be accompanied with an IRS voucher that should correctly route the payment. Nonetheless, the innocent spouse should write on the check his or her SSN, the tax year involved and “1040 Separate Assessment / Innocent Spouse). Merely writing “Form 1040” may result in the payment being coded to the joint return if the voucher is not correctly coded. Include a cover letter with the above information when making payments without a pre-printed voucher.
Many taxpayers today use the Electronic Federal Tax Payment System (EFTPS) to make tax payments online at http://www.EFTPS.gov. When using the EFTPS payment system the National Taxpayer Advocate’s blog post on 2/16/13 suggests following this procedure to have the payment correctly coded to MFT 31 account:
Select the payment tab.
Open the dropdown menu on “Select tax form.”
Select “1040 Separate Assessment/ Innocent Spouse.”
Otherwise selecting “Form 1040 U.S. Individual Income Tax Return” for the dropdown menu will result in the payment being coded to the joint return account.
It’s difficult to obtain innocent spouse relief. Follow the above procedure in making payments to avert having payments for the innocent spouse’s share of the joint return tax liability misapplied.
© 2013 by Robert S. Steinberg, Esquire
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