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Will the IRS come after a spouse for tax owed by the other spouse?

Norfolk, VA |

There are no joint assets, bank accounts, property, etc. We are not married yet but plan on it. Future tax returns will be filed separately. Will the IRS come after the other (non-tax owing) spouse for the back taxes?

Attorney Answers 5

  1. Based on your fact scenario, the IRS cannot come after the non-tax owing spouse. The tax is the separate liability of the tax-owing spouse and can only attach that spouse's assets.

    Be sure to avoid joint ownership of any property and file married filing separately once you are married. You may file a joint return, but any refunds due to the non-tax owing spouse may be taken by the IRS. An injured spouse claim could require the IRS to release the refund to the non-tax owing spouse. However, injured spouse claims can take a substantial amount of time, and it may just be easier to continue filing separately.

    Any information given is general tax information and may or may apply in your specific situation. Please consult with an attorney or other appropriate professional to determine how any advice may apply in your specific situation.

  2. - For information purposes and the benefit of a person reading this and living in a community state: the answer is different when either one of the couple is earning property in a community property state.

    - Then what feels like the property of one spouse will be treated by the IRS as owned in joint and they may move to levy on property or accounts as a way to assert their claim on the share owed by the spouse who owes the taxes.

    - A prenuptial agreement to maintain property as separate is well worth considering in a situation like this one when there would otherwise be community property. It can keep out of the IRS's power to seize the property the owned and earned by the spouse who does not owe the taxes.

    - As I understand it, the community property states are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

  3. Based on your facts posted -- IRS will NOT come after you. Hubby's tax liabilities will remain his alone.

    My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained. Please click "helpful" or "best answer" if my answer added any value or add a "comment" if you have more info for me to help you get a better answer.

  4. Generally speaking, one spouse is not liable for the taxes of the other spouse if they did not file a joint tax return. That being said, a recent US Supreme Court case, known as the Kraft decision, affirmed that the IRS can attach a spouse's interest in joint proerty for the outstanding taxes owed by one spouse. If you are planning to acquire jointly held property with your future spouse and there are still unresolved tax issues, you might want to discuss this situation further with an experienced tax attorney.

  5. I have seen situations where married persons filing jointly are liable for each others' taxes. I would be careful and know who you are marrying. If they have significant tax debts, it might be worth consulting a lawyer or a tax accountant to protect yourself going forward.

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