Some advisors’ married clients whose spouses have dragged them into federal tax trouble this filing season may have an out—if they can prove they were not involved in the tax infractions.

IRS innocent spouse relief is for taxpayers who filed jointly with their spouse, but with errors or outright lies on the return that they had nothing to do with. The relief is granted under section 6015 of the Internal Revenue Code, and it isn’t easy to get.

“Once a married couple files a return jointly, they are jointly and severally responsible for the accuracy of the return and the consequences of the return,” said Morris Armstrong, an enrolled agent and RIA at Armstrong Financial Strategies in Cheshire, Conn. “Innocent spouse relief is much more than correcting a simple mistake.”

“Like many areas of tax compliance, there likely is an unawareness of [innocent spouse relief] until it’s needed,” said Steve Howard, senior manager for tax services at RSM US in Peoria, Ill.

A client can request the relief if they filed a joint return with a spouse, his or her taxes were understated due to errors on the return and the client didn’t know about the errors, among other conditions. Errors that cause understated taxes include unreported income, incorrect deductions or credits and incorrect values for assets. According to the IRS, your client can claim the relief only for taxes due on a spouse’s income from employment or self-employment and not for taxes due on their own income; for household employment taxes and business taxes; and for trust fund recovery penalties for employment taxes, among others.

A client must request innocent spouse relief within two years of receiving an IRS notice of an audit or taxes due because of an error on a return.

“The form to apply for the relief, Form 8857, is pretty cumbersome and asks for a significant amount of information,” Howard said. “Like any other filing, the IRS has the right to audit the information provided on the form. So overall, the process can be time consuming and invasive. Additionally, the other spouse that filed the joint return will be notified by the IRS that the relief is being sought.”

Jointly filed returns are binding even if your client later divorces and even if the divorce decree states that the non-innocent spouse was responsible for the taxes and earned all the income.

The IRS may consider the background of your client, such as the education level of each spouse. The agency will also consider if the spouse was subject to coercion, abuse, threats or duress, or if his or her signature was forged on a joint return. The relief may be turned down if a spouse claiming innocence had knowledge of the errors on the return. The IRS will also determing whether the "innocent" soouse not knowing about the errors was “reasonable.” Certain payment agreements with the IRS or a final court decision and proceedings can also deny the relief.

“It can be an expensive process because someone needs to examine the past filings as well as current, ask probing questions and file several different forms,” Armstrong said. “Then the waiting begins.”

Armstrong also pointed out that the IRS will reject an innocence claim if it determines there was tacit consent, “where [a client has] filed a joint return for 20 years and always let the spouse sign and never questioned it."

The IRS calls the concept "a silent, implied or inferred consent to file the tax return jointly" that the agency can use to establish a joint election and disallow relief. Factors include a client's filing status for prior and subsequent tax years, whether your client participated in the preparation of the return by providing such as Forms W-2 and/or Forms 1099 and whether there was a tax benefit to filing jointly, such as reduced income tax.

More than 60% of relief claims in recent years were denied or granted only in part, according to an October 2023 report from the Treasury Inspector General for Tax Administration. The inspector general also found that the IRS needs to do better when processing innocent spouse relief claims.

IRS employees in the Cincinnati Centralized Innocent Spouse Operations failed to “fully develop” the facts and circumstances in more than a fifth of claims, the report said, and final determination letters “did not fully inform taxpayers of IRS decisions about their tax accounts,” the inspector general report said.