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Can I Prevent My Spouse From Getting Innocent Spouse Relief?

Can I Prevent My Spouse From Getting Innocent Spouse Relief?

The IRS must notify the other spouse—referred to as the nonrequesting spouse—if one spouse files a request for innocent spouse relief. If your spouse is successful in their attempt to receive innocent spouse relief, you will be on the hook for the tax debt, interest, and penalties that they get relief from. Because of this, the IRS gives the nonrequesting spouse the right to present evidence and dispute the request for innocent spouse relief.

Your Rights as a Nonrequesting Spouse

The nonrequesting spouse must be notified when the requesting spouse files a request for innocent spouse relief. The nonrequesting spouse must also be notified of the Service’s preliminary and final determinations regarding the request for innocent spouse relief.

As the nonrequesting spouse, you will have the opportunity to provide information to help the IRS make a determination regarding innocent spouse relief. However, you are not required to submit information.

Once the IRS has reviewed all available information, they will make a preliminary determination. If your spouse is granted full or partial relief, you will receive a notification letter, and be given 30 days to request an appeals conference in writing. It is critical that you request this appeals conference because it is your only opportunity to contest the granting of innocent spouse relief. As a nonrequesting spouse, you are not given the right to appeal this decision in Tax Court.

The requesting spouse, on the other hand, has both the right to request an appeals conference if they disagree with the preliminary determination, and the right to appeal the decision in Tax Court if they disagree with the final determination. If your spouse takes the case to Tax Court, you will be given the opportunity to participate.

Information That Will Support a Denial of Innocent Spouse Relief

There are many types of information that could support your case, and result in a denial of innocent spouse relief for your spouse or former spouse. If you can show that the requesting spouse had actual knowledge of the erroneous item that led to the understatement of tax, this may defeat their case. Depending on the type of relief they are requesting, you may also be able to show that they reasonably should have known about the erroneous item.

There are many other factors that could be weighed in a innocent spouse relief determination, including:

  • your spouse’s educational background
  • the extent of your spouse’s participation in the activity related to the erroneous item
  • whether your spouse received a significant benefit from the erroneous item
  • whether your spouse was the victim of abuse
  • your spouse’s mental and physical health

All of these factors can play a role in making an innocent spouse determination, and information related to any one factor might end up shifting the decision in your—or your spouse’s—favor.

If your spouse has requested innocent spouse relief, consult with a tax attorney to learn more about your options as a nonrequesting spouse.