You are asking for close consideration, an examined divination on his tax liability. Remember that IRS is big and that everyone there does not know the story and they may levy on your bank account anyway. why? They don't know how much money was in there from 5 years ago nor how much money was recently depositied.. They don't know how much was earned from him, etc.
Since you have a prenup that "where we agreed to keep all income and debt separate." why don't you have separate accounts??? By having a joint account, you facilitate mixing and facilitate IRS's taking. If you show the prenump, IRS will say, "but why are you violating it?"
Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.
As the first attorney provided, because you have a joint account, it will be difficult to prove that you kept his monies separate from yours. Where did the $8,000 go that he was supposed to pay? If it went into that account then that will be a red flag to the IRS. As for the currently not collectible status, many times the IRS will require you to list everyone that the indebted taxpayer lives with on the Form. However, that does not mean you will be unable to explain the income listed is not his and therefore he should be placed in non-collectible status. Again, this will bring up the issue of commingling your funds though.
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With respect to your husband's unpaid taxes for 2008, since you did not file jointly with him for that year, you are not liable for that tax debt.
That being said, the IRS can, and will, seize joint bank accounts for the unpaid taxes of one owner and will leave it to the other owner to prove how much of it was really theirs and to try and get the money back. Until your husband's back taxes are paid off or are otherwise compromised, you should not have any joint bank accounts with him.
With respect to whether or not your husband can convince the IRS to classify him as currently not collectible, there is no way you could ever post enough information here - and you should not in any event - for anyone to give you any good answer other than: he can ask. Keep in mind that for purposes of determining what his "available monthly income" is, the amount of allowable expenses he can deduct from his monthly income will be reduced by the amount of those taxes that you actually pay. Keep in mind as well that if he has any assets, the IRS will expect him to do his best to obtain funds from those assets to pay his taxes.
You and your husband - mainly your husband - should immediately seek the advice and assistance of a competent tax attorney, accountant, or enrolled agent. That person can tell you where your husband stands with the IRS and whether it's realistic to expect the IRS to classify him as currently not collectible, and if so, that person can assist your husband with completing and filing the appropriate collection information statement and negotiating with the IRS.
Finally, also keep in mind that penalties and interest will continue to accrue on those taxes, even if he is classified as currently not collectible, so it may in fact be better if you could provide him with some money to make at least small monthly payments on his taxes - if he could get a partial pay installment agreement with the IRS with your help it would be better for both of you in the long run.
You are not liable for your spouse's pre-marital debts.
Perhaps your husband could file for BK to discharge the debt as long as the tax return was filed in a timely manner.
I handled a BK case very similar to the above facts about 2 years ago and the Husband received a discharge even though the spouse made a good wage as a teacher.
So long as your prenuptial agreement is enforceable, you have a right to protected your income from collection. The biggest issue that I see for you is that your state's community property laws allow for the entirety of your community property can be collected against for premarital tax debt. See IRM 220.127.116.11
He can certainly submit a request for CNC status, but you will likely have the burden of demonstrating that your prenuptial agreement overrides California's standard community property laws.
Best of Luck.
Divorce Bank accounts in divorce Divorce and joint accounts Dividing debts in a divorce Community property in divorce Divorce and bankruptcy Prenups and divorce Bankruptcy Joint accounts during bankruptcy Debt Bankruptcy and debt Spousal debt Prenuptial agreement Tax return Tax law Marriage
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