I am sorry that you are going through this. Forgery is serious no matter how you look at it, however your question is very well thought out, the realistic consequences are not that egregious in this situation. Given that you were married and he probably handled the finances then his argument will be it wasn't a forgery it was your assent to get the taxes done and in the scope of it, many families do it although it is technically wrong. I would suggest that you have a strong argument to at least a portion of the refund. Take care and hope that things work out.
Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.
Forging someone's signature on a federal tax return is tax fraud and theoretically could be subject to criminal penalties. As a practical matter that would almost never happen if the only fraudulent action was forging your signature on the return.
As far as the refund goes, IRS will send it to the address on the return or deposited in the account listed on the return, so your ex-spouse will almost certainly get the refund.
The bigger concern - depending on whether or not you think your ex-spouse might have committed other tax fraud, such as not reporting all of his income or making up deductions that aren't accurate - is getting yourself out of the liability you now have for any additional taxes the IRS might decide to assess for this return. All things considered, it is not out of the realm of possibility that your ex-husband is planning on getting a grossly overinflated refund and then sticking you with the liability when the IRS tries to get the refund back.
To that end, you should really consult with a local tax attorney - many will give you an initial consultation for no, or only a small, fee - to determine whether it would be cost-effective to request innocent spouse relief from the IRS. Your divorce will definitely be a factor in whether you qualify for relief.
Whatever you decide to do you should get a copy of the return transcript from the IRS. Because your signature is on the return, you are entitled to get a transcript of that return from the IRS. You can request the transcript online from the IRS' website: www.irs.gov
Finally, don't forget to check for any state tax returns your ex-husband might have also fraudulently filed.
If, as you state, you are "going through" a divorce, I assume this means that you are represented by an attorney in your divorce matter. This should be brought to his or her attention and discussed. It probably will have a bearing on the division of property and perhaps other things. If you don't have a divorce ( or family law) attorney, you should hire one.
Further, what did the IRS employee say to you, assuming you told him or her about not seeing or signing the return. Also, have you filed your 2011 federal, state, and local returns? Did you get extensions, if the answer is no?
Good luck, and get an attorney.
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. Do NOT rely on anything I have written here -- You should contact a lawyer in your area immediately after reading my posting. The following disclosure is required pursuant to IRS Circular 230: unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.
The issue for you is not whether he was authorized to file a joint return but who is entitled to share in that refund. I say this because even if you convinced the IRS he signed your name without permission, which is OK if given, the result would be even worse. You'd still have no money and he'd have less.
What is important is that he should have listed that asset on his financial statement to the probate court (Rule 401 Form) as that being half yours. His refund, even though you did not contribute, should not be less than what received versus what he would have received if you didn't sign a joint return and maybe half (up to the discretion of a probate judge).
Therefore, go to your probate lawyer and have them demand half or you will report the fraud to the probate judge and see how much they give you.If your husband doesn't play fair, the judge can award you fees to pay your lawyer to enforce it as it's considered a fraud on the court that he did that.
Eric P. Rothenberg, P.C.
ORSI ARONE ROTHENBERG
160 Gould Street-Suite 320
Needham, MA 02494-2300
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IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that, unless we expressly state otherwise in this communication (including any attachments), any tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or other matter addressed herein.
I agree with Attorney Lewis, you have done well to focus on the realistic consequences of your husband's actions rather than getting focused on the outrage of his conduct. Realistically, if you convinced the IRS that this was a real forgery, the IRS could theoretically have your husband charged with a federal crime. Alternately, the IRS might demand he refile his return as "married filing separately", order him to pay additional taxes, and/or demand he return a portion of the refund. None of these options seem particularly helpful to you. A better option might be for you to file a very simple Motion in your divorce case alleging that your husband took 100% of the tax refund when you should be entitled to at least 50% of the refund. Ask the judge to order your husband to provide a copy of the tax returns and 50% of the refund(s) money right away. It is not as dramatic as reporting him to the IRS, but if you are successful, you would end up with the money you think you deserve in your pocket. Realistically, getting your share of the refund might be your best outcome.
The representations made herein are for informational purposes only, and are expressly not legal advice. Please consult a legal professional to resolve your legal issue.
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