Normally, when one spouse incurs a tax burden or penalty due to a mistake on a joint tax return, it becomes the responsibility of both spouses. However, there are certain situations where a spouse, who did not prepare a return and was unaware of the errors, is relieved from the tax liability. The IRS refers to this as innocent spouse relief.

You just found out that the IRS says you owe money.  It’s normal to feel a lot of emotions when the IRS notifies you that you owe them money. It can be frightening as well as stressful. You may also feel like it’s an unfair assessment on their part.  Why?  Because it’s not even your debt, your spouse is responsible for the tax debt. Our experienced Scottsdale innocent spouse relief attorneys have handled many cases just like yours. We can help you sort through the issues and find a resolution.

Types of Innocent Spouse Relief

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Even though there are three types of innocent spouse relief, claims are initially divided into two categories, tax debts from understatements and tax debts from underpayments.

Understatements: An understatement occurs when a tax return contains errors resulting in additional taxes owed to the IRS. We have found in most cases that errors were undetected when the paperwork was being filled out. In most cases, no one decides to make an error on their taxes. Rather, the errors are discovered by the IRS as they are going over the official forms. However, in rare situations, a spouse discovers during an audit or divorce that their spouse is responsible for incorrectly preparing the return.

Underpayments: Tax debts from underpayments occur when a tax return reports the correct amount of tax, but the amount owed was not paid when the filing of the tax return.

The good news is that relief is available in both circumstances. However, the process of obtaining innocent spouse relief can be complex and may require litigation. With extensive knowledge of innocent spouse relief, the experienced attorneys at Kaczmarek & Jojola routinely help clients pursue and obtain tax relief based on errors on tax returns that they were unaware of.

What Types of Taxes Are Eligible for Innocent Spouse Relief?

An innocent spouse can receive relief from most, but not all, types of taxes. For example, innocent spouse relief can apply to both individual income as well as self-employment taxes. However, it does not apply to business taxes, trust fund recovery penalties for employment taxes, household employment taxes, and individual shared responsibility payments.

Obtaining Innocent Spouse Relief

As an innocent spouse, the IRS allows you to be relieved from paying taxes, interest, and penalties that were the result of an erroneous tax return that you did not prepare and did not know about. However, if you are not responsible for the tax debt, someone has to be. Thus, it is important to establish liability for the tax debt. Naturally, this will likely shift the focus solely onto your spouse or former spouse.

There are three conditions to qualify for innocent spouse relief according to the IRS.

  1. Your spouse, or former spouse, filed a joint return with erroneous information;
  2. You had no knowledge of the errors on the return; and
  3. It would be unfair for you to be held liable for the mistake made by your spouse or former spouse.

The first element of an innocent spouse claim is typically straightforward. However, the second and third elements require a closer look. When it comes to determining if you had knowledge of an erroneous return, the IRS will not necessarily take your word for it. Instead, the IRS will consider whether a reasonable person in similar circumstances would have been aware of the error. Thus, the IRS does not necessarily need to prove that you actually knew about the error, only that you should have, given the surrounding circumstances.

For example, the IRS may consider the following factors when evaluating a claim for innocent spouse relief:

  • The nature and amount of the erroneous item relative to other items on your return;
  • Your overall financial situation;
  • Your education and business experience;
  • Your level of involvement in the business or activity that resulted in the erroneous item; and
  • Whether you failed to ask about the erroneous item when a reasonable person in your situation may have done so.

A claim for innocent spouse relief must contain some evidence that it would be unfair to hold you accountable for the mistake of your spouse or former spouse. The IRS will consider all facts and circumstances of the overall situation when making this determination, including:

  • Whether you received a significant benefit, directly or indirectly, from the error;
  • Whether your spouse or former spouse deserted you; and
  • Whether you and your spouse or former spouse are still married.

In addition, if you are no longer married to your spouse you can elect to separate your liability. If your election is granted, you are relieved of your former spouse’s tax debts. In order to be granted relief by separating your liabilities, you must establish that:

  • a joint return was filed;
  • the deficiency is attributable to your former spouse;
  • you are either divorced, widowed, legally separated, or are living apart from your spouse; and
  • that the request for relief is made within 2 years from the date the IRS takes the first collection activity.

If your spouse failed to report income, claimed improper credits or deductions, or reported income improperly you can file an innocent spouse application.


We understand that applying for innocent spouse relief can be stressful and confusing, at best. That is why we are here – to help you successfully present your case for tax relief to the IRS. It can be very complex and perplexing to figure out these extensive applications. At Kaczmarek & Jojola, our knowledgeable Scottsdale innocent spouse relief lawyers can assist you in developing and submitting comprehensive and compelling applications for innocent spouse relief.  Our goal is to obtain the maximum amount of relief possible at the earliest possible stage in the process, all while easing the stress and anxiety you are experiencing. Contact us today and let us help you work through this process. We are here for you!