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You are here: Experts > Business > Corporate Law > Tax Law (Questions About Taxes) > Can I refuse to be listed on my husbands tax return
Expert: Bruce W. Tyler, EA - 11/4/2009
Question
QUESTION: I am a stay at home mom and am in a bad marriage and am looking for the right time to divorce. In previous years I did not know of my rights and pretty much let him handle the filing of the taxes. I found out that for 2008 he tried to get a family member who does his taxes to claim that I made $30,000 as his employee. He is self-employed. The family member refused to do his taxes. Anyway, it is now Nov 2009 and he has not filed his taxes for 2008. My question is this, can I refuse to be put on any future tax returns of his. Also, there is a federal tax lien on us for 2004. When I do finally divorce how does this affect me in future employment and just getting by to support me and my teenage son. Thank You in advance.
ANSWER: Jean,
I need to know a couple of things here:
1. What state do you live in?
2. Did you live with him at all during 2008 and/or 2009?
The reason for the state question is because I need to know if you live in a community property state. The reason for the 2nd question is, if you did live together at any time and you do live in a community property state, any income earned, by either of you, is split 50/50 during the time that the 2 of you lived together. Of course, if you did not live together at all during 2008 or 2009, then it doesn't matter either way.
You can choose to file as Married, Filing Separate. You cannot be forced to file a joint return and if your husband files a Married, Filing Joint return and forges your name, he will be in very big trouble. If you do file as "MFS", you will only be responsible for the tax liability on your own return. Do you see why the 2 questions are important? If you lived together in a community property state and he earned $150,000 you would be responsible for 1/2 of this income, even if you didn't earn it or even see any of it.
Regarding the tax lien, if you filed jointly in 2004 it is going to follow you. There may be remedies however. "Innocent spouse" is out since the statute has expired (I assume you have known about the 2004 liability more than 2 years). But you may be eligable for an Offer in Compromise. It depends on how much the 2004 tax lien is for. Be careful of these commercials on TV promising you the world regarding your tax debt. Tax relief, while available, is only granted to those that the IRS sees as never having the money to pay it off within the statute period, which is 10 years.
If I were you, I would IMMEDIATELY file your 2008 tax return based on YOUR income. If you are not in a CPS or you are but did not live together during 2008, you can simply report your own income and deductions. If you did live in a CPS and did live together, write your husband a letter (yes, a letter) asking for copies of his tax documents (W-2's, Income statement from his business, etc) so that you can report 50% of his income (and deductions such as mortgage interest and property taxes if you own a home). You also must provide to him a copy of your tax documents -- again this applies ONLY if you lived in a community property state in 2008 and lived together the entire 12 months. If you lived together a portion of the year, it gets more complicated.
If you do want to file as MFS, you must list your husbands' name and SSN on your return, even though it is a "separate return" and likewise he must his your name and SSN. If you decide to go this way, have a tax pro prepare the return for you. There are special rules in place for itemized deductions and the claiming of your son as a dependent.
If you would like to determine your eligibility for an Offer-in-Compromise with the IRS, I will be happy to consult with you on that free of charge. Note that the IRS will not consider an offer if there are any tax returns unfiled.
Good luck Jean!
Bruce W. Tyler, EA
Lancaster, CA.
661-724-1041
---------- FOLLOW-UP ----------
QUESTION: To answer your questions. I live in Texas and I still do live with him. Also, I do not work at all, have absolutely no income other than his.
Answer
Jean,
Since you live in a community property state, you will responsible for 50% of the income from his business + 50% of any other taxable income (you also get to claim 50% of any mortgage interest and property taxes).
Bruce W. Tyler, Inc.
Lancaster, CA. 93536
661-724-1041
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