Can My Former Spouse File a Joint Return Without My Signature?
The answer is maybe. Under some circumstances, you can be held jointly liable for your spouse’s tax debts even if you didn’t sign the return. Normally, you must sign the return unless your spouse has a power of attorney. Still in many marriages one spouse manages the finances, including filing tax returns. He or she will gather the information to file the return, go to the tax preparer and have the return filed if everything looks right. The other spouse normally only gives the return a cursory glance or just relies on the other spouse that the return is done right.
Here is where the trouble starts. The couple gets in the habit of one spouse signing official documents on behalf of the other. It is a widespread practice. The Tax law incorporates this unconventional relationship into filing joint tax returns.
It is All About Intent
If you wanted to challenge a joint tax return. You could attack it from several angles. One of those is that you did not intend for your spouse to file the tax return as a joint return. The IRS would then look into the facts of your case. If your spouse and you frequently allow one or the other to sign documents on their behalf, including your tax returns, then you are going to have a hard time.
In a recent case, Mrs. Pike (now Mrs. Jones) let her husband handle her finances. Each year she gave him her tax documents and he had a local accountant prepare and file their taxes. Each year she never actually signed the return, instead Mr. Pike signed for her. When the couple separated, she continued to give him her tax documents to allow the return to be prepared right up to their divorce several years later.
Unfortunately for Mrs. Pike, taxes were due on several years of taxes. The IRS tried to collect the taxes from her. She defended saying that she never intended a joint return to be filed and thus should not be liable for any taxes related to his income. Ultimately, Mrs. Jones was unable to get her liability severed from her ex-husband’s. The facts showed that she consented to the joint return even without signing the return.
The case goes on to describe her attempts to obtain innocent spouse relief. Mrs. Jones does not prevail but even if a joint return is filed the taxpayer can still attempt to sever the joint return by requesting innocent spouse relief. The case mentioned above is Jones v. Commissioner of Internal Revenue, 2019 TC Memo 139 (filed October 16, 2019)
Final Thoughts.
What is interesting about this situation is that the IRS expressly states that a spouse cannot sign on behalf of the other spouse except in rare circumstances. Even then the IRS seems to suggest that the signing spouse must have a power of attorney to do so. A harsh result maybe but a good practice for you is to always demand to see and sign the joint return. If you have any doubts about the return then you may want to seriously consider whether or not to file separately.
I am Maine’s IRS Problem Solver. My firm helps Maine taxpayers in trouble. If you or someone you know in Southern Maine wants more information on how to resolve your unpaid taxes, please feel free to contact me directly at 207-502-7181 or by filing out my contact form. A Maine tax attorney can help you consider your options.
James D. Wade, Esq.
Law Office of James D. Wade
57 Portland Road, Unit 3
Kennebunk, ME 04043
207-502-7181
jwade@jdwadelaw.com
www.jdwadelaw.com