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Dave
Dave, Bookkeeper
Category: Tax
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Experience:  Four years doing books, taxes, and accounting
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My husband owes back taxes and I filed joint with him in ...

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My husband owes back taxes and I filed joint with him in 2005 and 2006. He was audited and now we have a huge tax bill. I have moved out and filed for divorce. Will filing "married filing seperate" for 2007 protect me from his tax debt for this year?
Submitted: 6 years ago.
Category: Tax
Expert:  Dave replied 6 years ago.

Good morningCustomerand welcome to Just Answer!

First, you can file separately and YOU claim your child. This way, your tax situation is TOTALLY segregated from your husband and YOU will get your refund with no regard to what your husband owes.

HOWEVER, when you file married filling separately there are many special rules that you need to be aware of that will impact your filing:

If you choose married filing separately as your filing status, the following special rules apply. Because of these special rules, you will usually pay more tax on a separate return than if you used another filing status that you qualify for.

  1. Your tax rate generally will be higher than it would be on a joint return.

  2. Your exemption amount for figuring the alternative minimum tax will be half that allowed to a joint return filer.

  3. You cannot take the credit for child and dependent care expenses in most cases, and the amount that you can exclude from income under an employer's dependent care assistance program is limited to $2,500 (instead of $5,000 if you filed a joint return).

  4. You cannot take the earned income credit.

  5. You cannot take the exclusion or credit for adoption expenses in most cases.

  6. You cannot take the education credits (the Hope credit and the lifetime learning credit), the deduction for student loan interest, or the tuition and fees deduction.

  7. You cannot exclude any interest income from qualified U.S. savings bonds that you used for higher education expenses.

  8. If you lived with your spouse at any time during the tax year:

    1. You cannot claim the credit for the elderly or the disabled.

    2. You will have to include in income more (up to 85%) of any social security or equivalent railroad retirement benefits you received, and

    3. You cannot roll over amounts from a traditional IRA into a Roth IRA.

  9. The following credits and deductions are reduced at income levels that are half of those for a joint return:

    1. The child tax credit,

    2. The retirement savings contributions credit,

    3. Itemized deductions, and

    4. The deduction for personal exemptions.

  10. Your capital loss deduction limit is $1,500 (instead of $3,000 if you filed a joint return).

  11. If your spouse itemizes deductions, you cannot claim the standard deduction. If you can claim the standard deduction, your basic standard deduction is half the amount allowed on a joint return.

Second, you can file jointly, but you also file Form 8857 and make a claim for relief from joint tax liability as an Innocent Spouse. See the following link for more information on this: http://www.irs.gov/individuals/article/0,,id=96786,00.html

Please let me know if I can be of any further assistance with this matter. Thank you for using Just Answer and please remember to leave feedback after you have clicked the Green Accept button. Have a great week.

 

Dave, Bookkeeper
Category: Tax
Satisfied Customers: 697
Experience: Four years doing books, taxes, and accounting
Dave and 3 other Tax Specialists are ready to help you
Customer: replied 6 years ago.
I have already filed form 8857 for tax year 2004 & 2006. The IRS told me I have to file separate, If I file joint they may disallow relief for 2004 & 2006. Currently they have put me in a non-collectible status for 2004 taxes. I live in Louisiana, a community property state. The IRS told me not to file the 8857 form at this time for 2007, and filing "married filing separate" may or may not protect me. I got different answers from different agents.
Expert:  Dave replied 6 years ago.

It sounds like filing married filing separate may be the best option for you at this time. If it turns out not to be you can always consider filing an amended return changing your filing status to jointly and filing form 8857 for 2007. I know you probably do not want to have to deal with all of that, but it is a tough situation to be in. Best of luck with everything and please let me know if I can be of any further assistance. Have a great day and best wishes!

Ps: As for the community property issue, that appears it will be a judgmental decision by the IRS on how to treat it. See the following links for more informatoin on the community property information:

http://www.irs.gov/publications/p555/ar02.html#d0e928

http://www.irs.gov/pub/irs-pdf/p971.pdf

These will both be able to "arm" you with more knowlege so that you know how to continue to handle the situation after the IRS renders a decision on how they will handle your returns.

Dave, Bookkeeper
Category: Tax
Satisfied Customers: 697
Experience: Four years doing books, taxes, and accounting
Dave and 3 other Tax Specialists are ready to help you

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