There are five elements that must be met to establish that you qualify for “Classic” Innocent Spouse Relief. Click here to read or watch more IRS Help resources.
The first element is that must have been a Married Filing Joint return. If no joint return was filed there is no way that Innocent Spouse Relief will be applicable. How do you blame your spouse when you filed a return using the Single filing status for example? You told the IRS that you weren’t even married now you turn around and blame your spouse? That may seem elementary but I’ve seen it happen.
The second element is that there must have been an understatement of tax attributable to the erroneous items of the other spouse. These erroneous items can be innocent errors or misrepresentations by the so called “guilty” spouse.
The third element is that the potential “Innocent Spouse” cannot have known about the erroneous items of the other spouse at the time that the return was signed. If they did know this makes them culpable or just as guilty as the other spouse.
The fourth element is that it must be inequitable or unfair for the IRS to hold the “Innocent Spouse” liable for the tax. This will be considered on a case by case basis. In my experience, the IRS is pretty tough when it comes to this element. They usually want to argue that the potential Innocent Spouse benefited from the income so it’s not unfair to hold them liable for the corresponding tax.
The fifth element is that the Application for Innocent Spouse Relief must be filed within 2 years of the first collection action taken by the IRS. This is not as straight forward as it seems so it’s a good idea to have a professional take a look at the case before you assume that you have run out of time.
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