When spouses file a joint income tax return, they are jointly and severally responsible for the entire tax liability,1 but a spouse may request relief for all or a portion of the liability in certain circumstances of unfairness pursuant to § 6015 of the Internal Revenue Code (“IRC”) and its associated regulation, Treas. Reg. 1.6015.
§ 6015 is commonly called the “innocent spouse relief” provision, but this section actually describes three types of relief:
- innocent spouse relief;
- allocation of deficiency, more commonly called separation of liability; and
- equitable relief.
Innocent spouse relief generally relieves a spouse of all responsibility for the joint tax liability at issue. Separation of liability, on the other hand, allocates the tax liability between spouses, as if they had filed separate tax returns, usually. Equitable relief can relieve a spouse of some or all responsibility for joint tax liability, but only if the unfairness of the situation cannot be remedied by innocent spouse relief and separation of liability.
There is another type of spousal tax relief available for non-joint filers. In community property states,2 spouses may face liability for tax attributable to items of community income even though they file separate tax returns. In that situation, a spouse may request relief for all or a portion of the liability, again in certain circumstances of unfairness, pursuant to IRC § 66(c). The two types of relief available under § 66(c) and Treas. Reg. 1.66-4 are:
- traditional relief from community income tax; and
- equitable relief.
Traditional § 66(c) relief shifts all responsibility for tax attributable to the item of community income at issue away from the requesting spouse. Equitable relief, which is only available if traditional relief is not, can also do the same.
1 IRS Publication 971: Innocent Spouse Relief.
2 As noted in Publication 971,(https://www.irs.gov/pub/irs-pdf/p971.pdf), community