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.
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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!
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.
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.
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