Innocent spouse provisions.

Generally, when married taxpayers file a joint return, they are each fully responsible for the accuracy of the return and liable for the full amount of tax or any deficiency due. Thus, if the earning spouse fails to report the income, the other spouse may be liable for the full amount of taxes due (as well as any interest and penalties). As an exception to this rule, relief is available for certain "innocent spouses." However, before 1998, this relief was somewhat limited and involved meeting both dollar understatement thresholds and a standard based on understatements that were "grossly erroneous"

In 1998, Congress enacted IRC section 6015. The new provisions relax the eligibility requirements for innocent spouse status, eliminating the dollar understatement thresholds and changing the standard to "erroneous" understatements rather than "grossly" erroneous ones; in addition, the new provisions expressly make "partial rebel" available. The new law also allows an individual no longer married to, separated from or no longer living with a spouse to elect separate liability for any deficiency. And the new law allows the IRS to grant relief when these provisions may not apply.

INNOCENT SPOUSE ELECTION

For the innocent spouse to take advantage of the new law (that is, to seek relief from joint and several liability), the following requirements must be met: A joint return must be filed.

* An understatement of tax on that return must be attributable to erroneous items of the other spouse.

* The innocent spouse must establish that, in signing the return, he or she did not know (and had no reason to know) of the understatement. To qualify for partial relief, that spouse must establish that he or she knew (or had reason to know) of the understatement but did not know (or have reason to know) of the extent of the understatement. In that way, the innocent spouse can be relieved of liability for taxes, interest and penalties attributable to the portion of the understatement not known.

* Considering the entire situation, it must be unfair to hold the spouse liable for the deficiency attributable to the understatement.

* The innocent spouse must elect this relief--by filing Form 8857, Request for Innocent Spouse Relief (And Separation of Liability and Equitable Relief)--no later than two years after the IRS has begun collection activities against that spouse.

SEPARATE LIABILITY ELECTION

In addition to the innocent spouse election, some taxpayers also may be eligible for a separate liability election if

* At the time the election is filed, the innocent spouse is no longer married to, or is legally separated from, the spouse with whom a joint return was filed.

* The innocent spouse was not a member of the same household as the spouse with whom the joint return was filed at any time during the 12-month period ending on the date the election was filed.

* That election was made no later than two years after the date the IRS began the collection activities giving the innocent spouse notice of the IRS's intention to collect the joint liability (such as garnishment of wages or a notice of intent to levy against property). Note that mailing a deficiency notice and demand for payment, addressed to both spouses, to the electing spouse's last known address does not start this two-year period.

EQUITABLE RELIEF

If, after taking into account all the facts and circumstances, it is not fair to hold a spouse liable for any portion of the unpaid tax or deficiency and he or she is not eligible for either the innocent spouse or separate liability election, the IRS still may relieve that spouse of liability.

For a discussion of some of the developments in this (and other) areas, see the Tax Clinic, edited by Philip Moore, in the October 1999 issue of The Tax Adviser.

Nicholas Fiore, editor The Tax Adviser