Chicago, IL asked in Tax Law for Illinois

Q: Should I claim innocent spouse?

My husband and I were married in May 2019. When filing for our 2019 taxes I learned that my spouse has claimed “exempt“ on his payroll tax for the entire 2019. The result is over $13,000 in tax liability, when otherwise I would have been due a refund for my portion of overpayment of about $3500 if filing jointly.

If I file married/separately I would lose my tax credits and end up paying about $200 in state and federal taxes.

Would I qualify as an innocent spouse for 2019 since I was unaware that my spouse wasn’t paying payroll tax?

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2 Lawyer Answers
Andrew M Steiger
Andrew M Steiger
Answered
  • Tax Law Lawyer
  • Grosse Pointe, MI

A: Based on the limited facts, it sounds like you would not qualify. You are not required to file a joint return, so carefully think your situation through before you file your 2019 return and seek professional advice if you want to reduce or eliminate the risk of being stuck with your spouse’s share of a joint tax liability.

Bruce Alexander Minnick agrees with this answer

A: Mr. Steiger gave you the correct advice; but since he did not explain why your cannot use the "innocent spouse" excuse I will: You cannot claim to be an "innocent spouse" in this situation because neither you nor your new husband has done anything stupid--yet.

Tell your new husband that his best--and perhaps only--move is to find some way to pay the IRS all the taxes and penalties it takes for the two of you--filing jointly--to receive a refund in the amount that you expected to enjoy before marrying him. If he says no, then file separately and look out for yourself--like he should do.

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