Innocent spouse (and separation of liability and equitable relief)
If you file a joint return, both you and your spouse are responsible for the tax and any interest or penalties due on the return. However, you may qualify for relief from some, or all, of the tax, interest, and penalties relating to a tax bill issued to you and your spouse (or former spouse).
If some or all of your refund from a jointly filed return was offset to a debt owed solely by the joint taxpayer, see Nonobligated Spouse Relief (NOBS) and Form IT-280, Nonobligated Spouse Allocation and Form IT-280-I, Instructions for Form IT-280, for additional information.
There are three types of relief available to you:
- innocent spouse relief,
- separation of liability, and
- equitable relief.
Factors considered for relief – Tax Law § 654
| Factors | Innocent spouse relief | Separation of liability | Equitable relief |
|---|---|---|---|
| Type of liability | You must have filed a joint return that has an understatement of tax due to an erroneous item of your spouse. | You must have filed a joint return that has an understatement of tax due, at least in part, to an erroneous item of your spouse. | You must have filed a joint return that has either an understatement or an underpayment of tax. |
| Marital status | Marital status may be considered in determining whether to grant relief. | You must be divorced (or your spouse is deceased), legally separated, or not a member of the same household as your spouse for an entire year before you file for relief. | Marital status may be considered in determining whether to grant relief. |
| Knowledge | You must establish that at the time you signed the joint return you did not know, and had no reason to know, that there was an understatement of tax or the extent of the understatement. | You must establish that at the time you signed the joint return you did not know, and had no reason to know, that there was an understatement of tax or the extent of the understatement. | May be considered as a factor. |
| Other qualifications | IT-285 must be filed within 2 years from beginning of collection action. | IT-285 must be filed within 2 years from beginning of collection action. | You do not qualify for either innocent spouse relief or separation of liability. |
| Unfairness | When taking into account all the facts and circumstances, it would be unfair to hold you liable for the understatement of tax. | Not considered as a factor for relief. | When taking into account all the facts and circumstances, it would be unfair to hold you liable for the understatement of tax. |
| Refunds | Your request can generate a refund. More information below. | No refunds are permitted. | Your request can generate a refund. More information below. |
| Duress – threat of harm or other form of coercion | If you establish that you signed your joint New York State income tax return under duress then it is not a joint return, and your liability on the joint return may be invalid. However, you may be required to file a separate return for that tax year, which may result in you owing tax. | If you establish that you signed your joint New York State income tax return under duress then it is not a joint return, and your liability on the joint return may be invalid. However, you may be required to file a separate return for that tax year, which may result in you owing tax. | If you establish that you signed your joint New York State income tax return under duress then it is not a joint return, and your liability on the joint return may be invalid. However, you may be required to file a separate return for that tax year, which may result in you owing tax. |
To request relief, see Form IT-285, Request for Innocent Spouse Relief (and Separation of Liability and Equitable Relief), and its instructions. If you file Form IT-285, the department will consider whether you qualify under innocent spouse relief, separation of liability, or equitable relief.
Refunds are not permitted under all relief types. If the relief type you qualify for does permit refunds, you will only be refunded payments made with your own money. Payments made with the joint return, joint payments, or payments that your spouse (or former spouse) made are not eligible to be refunded. Refunds are also limited by the statute of limitations per the tax law (generally three years from the date the original return was filed or two years from the date the tax was paid, whichever is later).
You may instead qualify for an offer in compromise under 171 (eighteenth-d) of the Tax Law if you are jointly and severally liable on a joint income tax return and you meet certain conditions. Additional information can be found on Form DTF-4.2, located on the department website, www.tax.ny.gov.
To apply for innocent spouse relief, mail your completed Form IT-285 with supporting documentation to:
NYS TAX DEPARTMENT
PROTEST CORRESPONDENCE UNIT
W A HARRIMAN CAMPUS
ALBANY, NY 12227-5120
For more information:
Visit the IRS Tax Information for Innocent Spouses webpage.