It is common for one spouse to handle finances, including taxes. Indeed, it is not unheard of that a spouse does not sign, or even see, their joint tax return before it is filed with the IRS.
So what happens if there is an error on the return, or if the tax was never paid and the IRS comes knocking? The IRS will assess liability against both taxpayers because it is a joint tax return. But is there a loophole based on the fact that you did not sign, or even see, the return before it was filed?
It depends.
If your name is signed on a tax return, it is presumed to be signed by you. But that presumption can be overcome if you prove that you did not sign the return or that you signed under duress.
If you signed a joint tax return under duress or if your signature was forged (provided you did not authorize the signing of your name), the election to jointly file the tax return is not valid and you will not be jointly and severally liable for income tax liabilities arising from that tax return.
However, if you authorized the signing of your name to the return, there could be tacit consent.
Tacit consent means that based on your actions at the time the joint return was filed, you agreed to the filing of the joint tax return even if you did not put pen to paper and sign the return yourself.
Tacit consent is a factual determination. Several factors that may support a finding that you consented to the filing of the joint return include:
- You gave tax information to your spouse.
- You did not object to the filing of the joint tax return.
- There was an apparent advantage to you in filing a joint tax return.
- You filed joint tax returns with your spouse in prior years.
- You failed to file a married filing separate return and you had a filing requirement.
Even if the IRS finds that you tacitly consented to the filing of the joint tax return, you may still qualify for innocent spouse relief.
If you request innocent spouse relief, and also maintain that you did not sign the tax return, or that you signed the tax return under duress, the IRS will first determine whether the joint return is valid. If it determines it is not valid, the IRS will deny your request for innocent spouse relief based on the fact that your joint return was invalid and you will not be held jointly and severally liable for the tax liability. On the other hand, if it is determined that a valid joint tax return was filed, the IRS will then determine whether you are entitled to innocent spouse relief. Please see our prior blog post regarding eligibility for innocent spouse relief.
If you have questions related to the filing of joint tax returns, please contact Kaitlin Corey at (410) 783-3526 or kcorey@gdldlaw.com.
