Legal Question in Bankruptcy in Maryland

My X-husband got audited for 2007. We filed together that year, but we were seperated. In 2008 I filed for Bankruptcy, he did not. Our divorce was final 3/09. I did not receive anything from the IRS only he did. Am I responsible for half of what he owe's?

Barb

Asked on 8/26/09, 1:31 pm

1 Answer from Attorneys

Burton Haynes Burton J. Haynes, P.C.
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Your bankruptcy would not absolve you from liability on the joint 2007 return because a 2007 tax was too new to be dischargeable in 2008. Under BC sec. 507(a)(8)(A), a tax must be at least three years old measured from the due date to be dischargeable. As such, you remain "jointly and severally liable" for the entire amount of the tax, penalties and interest, not just "half." When you file jointly, you are both liable for the whole thing, which is what joint and several liability means.

This being said, however, you should be entitled to innocent spouse relief if all the changes were from things on the return that related to your husband, and not to you. There are three kinds of innocent spouse relief available under IRC sec. 6015, and what you want is the "separation of liability" form that is available only to those who filed joint returns but are now separated, widowed or divorced. The tax would be recalculated as though you had filed separately in the first place.

For more on both dishcharging taxes in bankruptcy and innocent spouse, see the article section of my website at www.bjhaynes.com

Good luck in seeking innocent spouse relief (which you do by filing an IRS Form 8857).

BJ Haynes

Read more
8/31/09, 1:53 pm

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