Taxpayers are personally liable for any tax due on a joint return, regardless if they are still married to the same spouse with whom the joint return was filed.
The only way taxpayers can avoid personal liability if they are still married and living with the same spouse on the joint tax return is to qualify as an “innocent spouse” or apply for “equitable relief”. If a taxpayer is divorced, legally separated, living apart, or their spouse has died; they may be able to seek relief by claiming “separate liability treatment”.
In order to qualify for “innocent spouse relief”, a taxpayer must satisfy all of the following conditions:
The request for “innocent spouse relief” must be made no later than two years from when the IRS begins collecting the amount owed on the joint tax return (either by reducing a current refund or garnishing wages). If a request is not made after two years then the request will be denied, even if the taxpayer meets the qualification tests.
Taxpayers can use “separate liability relief” when the IRS attempts to collect the taxes due on a joint return and they are currently divorced or legally separated from the spouse whom they filed with. If a taxpayer qualifies, they will only be liable for the part of the tax liability that is allocable to them. Like “innocent spouse relief”, the request for “separate liability relief” must be made no later than two years from when the IRS begins collecting the amount owed on the joint tax return.
If “innocent spouse relief” and “separate liability relief” are not available, the IRS may grant “equitable relief” to a taxpayer who filed a joint tax return. “Equitable relief” would apply if the proper amount of tax was reported, but not paid, and the funds set aside to pay the tax were used for other purposes. Taxpayers have 10 years from the tax assessment date to submit a claim for “equitable relief”.