Innocent Spouse / MFS

[mcbreck]

Husband has a rather substantial tax bill coming and will likely be filing for bankruptcy within the next year (multiple lawsuits he will be losing and a criminal case he lost with hefty fines) and wife wants to file separately. I don't file an 8857 claim for Innocent Spouse Relief if I'm filing MFS do I? The instructions say it is only if you filed joint and have some sort of previous unpaid tax bill due.

The husband's attorney insists an 8857 must be filed and I don't see it. They didn't have an unpaid tax liability in previous years (husband hasn't reported income for a while). Now they might if the IRS decides his tax deductions 4 years ago were invalid but that hasn't happened yet and as far as I know he's not being audited. He also has next to nothing in assets left. We aren't in a community property state.

 

[Lee B]

I agree with the attorney, because Innocent Spouse relief also applies to any additional tax that the IRS may determine to be owed.

[BTS]

Its up to the wife, not the husband.  Too many ifs.  I would recommend her file separate, stay away from his shenanigan's. 

[Terry D EA]

I agree with Lee and the attorney. Fill out the 8857 for the last 6 years they filed married filing joint. Better to have it and not need it then to need it and not have it.

[schirallicpa]

I'm going to have a similar situation with a new client coming in next week.  Has to file delinquent returns.  He's self-employed, knows he owes significant tax, and he's the one that dropped the ball.  Wife has W2.  I'm wondering if I am safe with innocent spouse and joint return, or if I should have them file separate. 

[Lee B]

Innocent spouse relief can relieve you from paying additional taxes if your spouse understated taxes due on your joint tax return

and you didn't know about the errors.