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During divorce husband filed joint taxes electronically with direct deposit into his acct w/o my consent or knowledge. What now?

Rancho Santa Margarita, CA |

During 20yrs marraige I became unable to work & awarded SSD benefits. Taxes were always done by that ex using Turbo Tax with direct deposits to his acct. I was ok with it then. But this is now and now I am not! During yrs of separation and divorce proceedings I was not require to pay taxes due to my low income. I found out he was filing joint each year. He always told me there was no return & taxes was owed. With his LASD income and military pension, it didn't add up. I was able to get a portion of the support enforced & now required to filed. I brought it before the court. He lied stating he hasn't filed since 2008. With that, I pulled IRS docs for 2009-2011. I remain painfully disappointed, NOTHING was done! Just divorced but case remains in court jurisdiction. What can I do myself?

Attorney Answers 4

Posted

In regard to you IRS matter, your best option will be to file Form 911 and ask for the Taxpayer Advocate Services' assistance. You cannot amended a Form 1040 tax return to Married Filing Separately once it has been filed as Married Filing Jointly. However, you can explain your situation to the Taxpayer Advocate Service and they might be able adjust your account based on the facts in your case.

You might want to consider hiring a tax attorney to help you through the process.

Good luck.

This material does not constitute tax, legal or accounting advice. It was not intended or written for use and cannot be used by any taxpayer for the purpose of avoiding any IRS or NYS penalty. The information contained herein is for informational purposes only as a service to the public, and is not legal advice or a substitute for legal counsel, nor does it constitute advertising or a solicitation. This response is not intended to create, and does not create, an attorney-client relationship between you and the author.

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Posted

Thank you so very much for your time. With your suggestions, I'm hopeful this will be the start of righting the many illegally wrongs he's done to me w/o any recourse. Thank you again!

Gregory David Verdibello

Gregory David Verdibello

Posted

You're very welcome.

Posted

I would recommend that you hire an accountant or CPA to review the matter. The Accountant or CPA can tell you whether you need to or should file amended returns for open years reflecting married filing separately. At the very least you need to advise the IRS and FTB in writing that you never agreed to your ex-spouse's filing married jointly after you separated. Good luck!

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Thank you for your time and suggestions. For now, I'm only able to write those letters. It's a good start. Thank you again.

Posted

First, I suggest that you find out what happened to the refunds that were deposited into your husband's bank account (i.e., are any of the refund amounts still in your husband's bank account? If not, what did he spend those refunds on?). If your husband still has some or all of those funds, you may be able to petition the family law court to modify the property division portion of the judgment of dissolution to address your husband's ill-gotten refunds for 2009-2011 (this assumes the State Court has already divided your marital property) and/or to revise (increase) your husband's spousal support obligations.

I would also introduce into evidence in your family law case the Account Transcripts that you obtained from the IRS for 2009-2011. You (or your family law attorney) should then point out to the State Court that your husband lied about not having filed tax returns since 2008, and on that basis, you can request an order that you be awarded the entirety of refund amounts. Your situation appears to be similar to In re Marriage of Rossi, 90 Cal.App.4th 34 (2001). That case demonstrates the principle that from the moment a dissolution action is filed in California, both spouses have a continuing duty to disclose all assets and liabilities along with all income and expenses. That duty arises automatically, and applies whether the information is requested by the other spouse or not.

In Rossi, the wife (Denise Rossi) won $1,336,000 in a lottery pool and shortly thereafter filed for divorce. Mrs. Rossi never told her husband about her lottery winnings and failed to disclose the funds in any of her required disclosures. She even went so far as to consult with lottery officials about how to keep her husband from learning about the prize. Judgment was entered in the divorce case without Mr. Rossi learning about the lottery winnings, which obviously were not included amongst the marital property that the court divided. Two years later, Mr. Rossi inadvertently received a letter regarding his ex-wife's lottery winnings. He then filed a motion to set aside the divorce judgment and sought an award of 100% of Mrs. Rossi's winnings. The court found that Mrs. Rossi's failure to disclose the winnings constituted fraud, oppression and malice and awarded Mr. Rossi 100% of the winnings. The family law court imposed that sanction on Mrs. Rossi (the non-disclosing spouse) based on Fam. Code § 1101(h), regarding a spouse’s breach of fiduciary duty for failure disclose assets to the other spouse. That statute allows the harmed spouse to request an award of punitive damages under Cal. Civ. Code § 3294, if she can show that the failure to disclose was due to “oppression, fraud, or malice.”

It is the public policy of the State of California to ensure fair and sufficient child and spousal support awards and to achieve a fair and proper division of community assets and liabilities. The California Family Code states that in order to promote this public policy, "a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of proceeding...together with disclosure of all income and expenses of the parties. Moreover, each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues . . . each party will have a full and complete knowledge of the relevant underlying facts." Cal. Fam. Code § 2100.

Because the family court can adjudicate the parties' relative entitlement to the refunds, I would use that route now rather than enlist the IRS's help in resolving your problem, as the refunds have already been paid out. Finally, the joint returns that your husband filed are invalid if you were legally separated per a decree or order on the last day of the tax year.

The answer to this question does not establish an attorney-client relationship. Moreover, this attorney is licensed to practiced law ONLY in the State of California. Answers to questions from users in other jurisdictions or states are meant to provide only general information. Users should contact a local attorney in their jurisdiction or state to address their specific tax issue.

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Thank you so very much! I believe this is the way to go because your answer had me crying! It's either tears because your answer finally sounds more right to me or tears because I have so much homework to do and already my head is fixing to explode! Thank you very much for your suggestions and time. Now I must disect! Thank you again!

Richard Gordon Stack

Richard Gordon Stack

Posted

I'm glad that the advice was helpful to you. Hopefully you can get as favorably a result as Mr. Rossi did (although I doubt that $1.3 million is at issue). Best of luck to you in recovering some of those refunds from your ex-husband.

Posted

You issues described above qualify you for the innocent spouse exception by the IRS.
Filing electronically and depositing in his accounts is one of the elements that will assist you.
Go to the IRS web site and type innocent spouse exception.
Is simple and easy. Some of us in avvo are fraud examiners and we have those issues as part of financial fraud committed by ex husbands.

Disclaimer:Attorney and Fraud Examiner.One of few that are Certified Fraud Examiners (CFE). The information contained in this website is provided for informational purposes only, and should not be construed as a legal advice on any subject. No recipients of content from this site,clients or otherwise,should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this website contains general information and may not reflect current legal developments, verdicts or settlements. The Karamanlis Powers Law Offices expressly disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this website, weblogs, twitter, facebook, google+. *the certification is not a specialty recognized by the California State Bar.

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Richard Gordon Stack

Richard Gordon Stack

Posted

Innocent spouse relief may well be available to the asker. However, it would not help her to obtain refunds from the IRS because it has already paid out refunds to the husband, who misappropriated by them. The IRS will not issue new refunds to the asker. Innocent spouse relief would come in handy for the asker only if the IRS were to audit the purported joint returns and determine that additional taxes are due an owing. In that instance, she would need to file a innocent spouse claim to blunt the "joint and several" liability feature of joint return filing. It may be a good idea for the asker to contact the IRS and disavow the purported joint returns, by stating that they were filed without her knowledge and consent. If the IRS agrees, then the returns are invalid as joint returns and the asker does not need innocent spouse relief.

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