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Robin D.
Robin D., Senior Tax Advisor 4
Category: Tax
Satisfied Customers: 13127
Experience:  15years with H & R Block. Divisional leader, Instructor
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Hi, Im asking this for my cousin. Hed like to know what kind

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Hi, I'm asking this for my cousin. He'd like to know what kind of penalty he is facing given the case decried below:
He married a women in 2005 who is in china and helped her get green card. She came to US in 2007. She was not used to life in US and wanted to go back. They filed divorce in china in 2008. But she decided to come back to US half year later and this time she got a job. My cousin didn't marry her. But he and her filed joined tax return for 2009 and 2010 because she didn't want to do it herself. What kind of penalty my cousin is facing? Fine or jail? What if he reveal this to IRS himself?
Submitted: 4 years ago.
Category: Tax
Expert:  Robin D. replied 4 years ago.

Robin D :

Hello and thank you for using Just Answer.
The severity of your cousin's problem is going to depend on what state he lives in. The IRS recognizes that a person is married depending on the state that they live in and if that state's laws recognize them as married.
Currently, only nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma and Texas) and the District of Columbia recognize common-law marriages. If the couple lived in one of the above listed states then your cousin may have no problem at all provided they are married in that state by common law.
If your cousin did not live in a common law state with his ex-wife then he needs to correct this if the divorce in China is valid in the US. Unfortunately you can prepare a 1040X to amend a return to change your filing status from Married Filing Joint to Single after the due date of the return.
The penalty is goting to be based on what the tax changes on this return. Generally if a taxpayer comes forward any penalty can be lessened.

Robin D :

If you provide fraudulent information on your return, you may have to pay a civil fraud penalty. Civil fraud penalties will be asserted when there is clear and convincing evidence to prove that some part of the underpayment of tax was due to fraud. Such evidence must show the taxpayer’s intent to evade the assessment of tax which the taxpayer believed to be owing. Intent is distinguished from inadvertence, reliance on incorrect technical advice, honest difference of opinion, negligence or carelessness. In the case of a joint return, intent must be established for each spouse separately as required by IRC § 6663(c) .
You can avoid the penalty for disregard of rules or regulations if you adequately disclose on your return a position that has at least a reasonable basis.
If there is any underpayment of tax on your return due to fraud, a penalty of 75% of the underpayment due to fraud will be added to your tax. Discolosing the position himself would possibly have the penalty abated (dropped).

Robin D :

I saw where you came in and looked at the response but you did not ask any follow up questions. Please know that you can ask for clarification if you need to before your ACCEPT or any after.

Customer: Hi,
Customer: Hi, thanks for your answer. The divorce was in china. He thought he was stilled married in us. He didn't intend to do this. If he does not come up, no one knows. But if he comes up, will IRS thinks he did it on purpose?
Robin D :

It is difcult to say what anyone would think about any situation. I do not think they would be hard on him if he came forward.
He really needs to realize that he is now responsible for that return having filed Married Joint with her. When you file jointly both parties are responsible for the tax and if there had been a balance due just because of her information he would have still been held responsible.
I suggest he not file joint with her again unless they are really married.
Thanks in advance for clicking ACCEPT.

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