II. Explanation of the Bill
1. Spousal election to limit joint and several liability on joint return (Sec. 3201
of the Bill and new Sec. 6015 of the Code)
Relief from liability for tax, interest and penalties is available for "innocent spouses" in
certain circumstances. To qualify for such relief, the innocent spouse must establish: (1) that a
joint return was made; (2) that an understatement of tax, which exceeds the greater of $500 or a
specified percentage of the innocent spouse's adjusted gross income for the preadjustment (most
recent) year, is attributable to a grossly erroneous item of the other spouse; (3) that in signing the
return, the innocent spouse did not know, and had no reason to know, that there was an
understatement of tax; and (4) that taking into account all the facts and circumstances, it is
inequitable to hold the innocent spouse liable for the deficiency in tax. The specified percentage of
adjusted gross income is 10 percent if adjusted gross income is $20,000 or less. Otherwise, the
specified percentage is 25 percent.
The proper forum for contesting the Secretary's denial of innocent spouse relief is
determined by whether an underpayment is asserted or the taxpayer is seeking a refund of overpaid
taxes. Accordingly, the Tax Court may not have jurisdiction to review all denials of innocent
Reasons for Change
The Committee is concerned that the innocent spouse provisions of present law are
inadequate. The Committee believes that a system based on separate liabilities will provide better
protection for innocent spouses than the current system. The Committee generally believes that an
electing spouse's liability should be satisfied by the payment of the tax attributable to that spouse's
income and that an election to limit a spouse's liability to that amount is appropriate.
The Committee intends that this election be available to limit the liability of spouses for tax
attributable to items of which they had no knowledge. The Committee is concerned that taxpayers
not be allowed to abuse these rules by knowingly signing false returns, or by transferring assets
for the purpose of avoiding the payment of tax by the use of this election. The Committee believes
that rules restricting the ability of taxpayers to limit their liability in such situations are appropriate.
The Committee believes that taxpayers need to be informed of their right to make this
election and that the IRS is the best source of that information. The Committee also believes that
the IRS should take appropriate steps to insure that both spouses are made aware of their tax
situation, and not rely on a single notice sent to a single address to inform both spouses.
Explanation of Provision
The bill modifies the innocent spouse provisions to permit a spouse to elect to limit his or
her liability for unpaid taxes on a joint return to the spouse's separate liability amount. In the case
of a deficiency arising from a joint return, a spouse would be liable only to the extent items giving
rise to the deficiency are allocable to the spouse. Special rules apply to prevent the inappropriate
use of the election.
Items are generally allocated between spouses in the same manner as they would have been
allocated had the spouses filed separate returns. The Secretary may prescribe other methods of
allocation by regulation. The allocation of items is to be accomplished without regard to
community property laws.
The election applies to all unpaid taxes under subtitle A of the Internal Revenue Code,
including the income tax and the self-employment tax. The election may be made at any time not
later than 2 years after collection activities begin with respect to the electing spouse. The
Committee intends that 2 year period not begin until collection activities have been undertaken
against the electing spouse that have the effect of giving the spouse notice of the IRS' intention to
collect the joint liability from such spouse. For example, garnishment of wages, a notice of intent
to levy against the property of the electing spouse would constitute collection activity against the
electing spouse. The mailing of a notice of deficiency and demand for payment to the last known
address of the electing spouse, addressed to both spouses, would not.
The Tax Court has jurisdiction of disputes arising from the separate liability election. For
example, a spouse who makes the separate liability election may petition the Tax Court to
determine the limits on liability applicable under this provision. The Tax Court is authorized to
establish rules that would allow the Secretary of the Treasury and the electing spouse to require,
with adequate notice, the other spouse to become a party to any proceeding before the Tax Court.
The Secretary of the Treasury is required to develop a separate form with instructions for taxpayers
to use in electing to limit liability.
Allocations of items
Under the bill, allocation of items of income and deduction follows the present-law rules
determining which spouse is responsible for reporting an item when the spouses use the married,
filing separate filing status. The Secretary of the Treasury is granted authority to prescribe
regulations providing simplified methods of allocating items.
In general, apportionment of items of income are expected to follow the source of the
income. Wage income is allocated to the spouse performing the job and receiving the Form W-2.
Business and investment income (including any capital gains) is allocated in the same proportion as
the ownership of the business or investment that produces the income. Where ownership of the
business or investment is held by both spouses as joint tenants, it is expected that any income is
allocated equally to each spouse, in the absence of clear and convincing evidence supporting a
The allocation of business deductions is expected to follow the ownership of the business.
Personal deduction items are expected to be allocated equally between spouses, unless the evidence
shows that a different allocation is appropriate. For example, a charitable contribution normally
wold be allocated equally to both spouses. However, if the wife provides evidence that the
deduction relates to the contribution of an asset that was the sole property of the husband, any
deficiency assessed because it is later determined that the value of the property was overstated
would be allocated to the husband.
Items of loss or deduction are allocated to a spouse only to the extent that income
attributable to the spouse was offset by the deduction or loss. Any remainder is allocated to the
Income tax withholding is allocated to the spouse from whose paycheck the tax was
withheld. Estimated tax payments are generally expected to be allocated to the spouse who made
the payments. If the payments were made jointly, the payments are expected to be allocated
equally to each spouse, in the absence of evidence supporting a different allocation.
The allocation of items is to be made without regard to the community property laws of any
If the electing spouse establishes that he or she did not know, and had no reason to know,
of an item and, considering all the facts and circumstances, it is inequitable to hold the electing
spouse responsible for any unpaid tax or deficiency attributable to such item, the item may be
equitably reallocated to the other spouse. In cases where the IRS proves fraud, the IRS may
distribute, apportion, or allocate any item between spouses.
If a spouse makes the separate liability election, the liability for deficiencies determined
after a joint return is filed is allocated to the spouse whose item gives rise to the deficiency. For
example, if a deficiency is assessed after an IRS audit that relates to the husband's income that he
failed to report on the return, the entire deficiency is allocated to the husband. If the wife elects
separate liability, she owes none of the deficiency. The deficiency is the sole responsibility of the
husband who failed to report the income.
If the deficiency relates to the items of both spouses, the separate liability for the deficiency
is allocated between the spouses in the same proportion as the net items taken into account in
determining the deficiency. If the deficiency arises as a result of the denial of an item of deduction
or credit, the amount of the deficiency allocated to the spouse to whom the item of deduction or
credit is allocated is limited to the amount of income or tax allocated to such spouse that was offset
by the deduction or credit. The remainder of the liability is allocated to the other spouse to reflect
the fact that income or tax allocated to that spouse was originally offset by a portion of the
disallowed deduction or credit.
For example, a married couple files a joint return with wage income of $100,000 allocable
to the wife and $30,000 of self employment income allocable to the husband. On examination, a
$20,000 deduction allocated to the husband is disallowed, resulting in a deficiency of $5,600.
Under the provision, the liability is allocated in proportion to the items giving rise to the deficiency.
Since the only item giving rise to the deficiency is allocable to the husband, and because he
reported sufficient income to offset the item of deduction, the entire deficiency is allocated to the
husband and the wife has no liability with regard to the deficiency, regardless of the ability of the
IRS to collect the deficiency from the husband.
If the joint return had shown only $15,000 (instead of $30,000) of self employment
income for the husband, the income offset limitation rule discussed above would apply. In this
case, the disallowed $20,000 deduction entirely offsets the $15,000 of income of the husband, and
$5,000 remains. This remaining $5,000 of the disallowed deduction offsets income of the wife.
The liability for the deficiency is therefore divided in proportion to the amount of income offset for
each spouse. In this example, the husband is liable for 3/4 of the deficiency ($4,200), and the wife
is liable for the remaining 1/4 ($1,400).
The rule that the election will not apply to the extent any deficiency is attributable to an item
the electing spouse had actual knowledge of is expected to be applied by treating the item as fully
allocable to both spouses. For example a married couple files a joint return with wage income of
$150,000 allocable to the wife and $30,000 of self employment income allocable to the husband.
On examination, an additional $20,000 of the husband's self employment income is discovered,
resulting in a deficiency of $9,000. The IRS proves that the wife had actual knowledge that
$5,000 of this additional self employment income, but had no knowledge of the remaining
$15,000. In this case, the husband would be liable for the full amount of the deficiency, since the
item giving rise to the deficiency is fully allocable to him. In addition, the wife would be liable for
the amount that would have been calculated as the deficiency based on the $5,000 of unreported
income of which she had actual knowledge. The IRS would be allowed to collect that amount
from either spouse, while the remainder of the deficiency could be collected from only the
Tax shown on a return, but not paid
The separate liability election also applies in situations where the tax shown on a joint
return is not paid with the return. In this case, the amount determined under the separate liability
election equals the amount that would have been reported by the electing spouse on a separate
return. However, if any item of credit or deduction would be disallowed solely because a separate
return is filed, the item of credit or deduction will be computed without regard to such prohibition.
Similarly, a base amount and an adjusted base amount will be allowed in the determination of the
taxable portion of social security and tier 1 railroad retirement benefits without regard to the rule in
section 86(c). The calculation of the tax that would be shown on the separate return does not
constitute the filing of a separate return. Other actions whose character may have been dependent
upon the joint filing status of the taxpayer (for example, the making of a deductible IRA
contribution under section 219) are unaffected by the election.
The separate liability election may not be used to create a refund, or to direct a refund to a
Special rules apply to prevent the inappropriate use of the election.
First, if the IRS demonstrates that assets were transferred between the spouses in a
fraudulent scheme joined in by both spouses, neither spouse is eligible to make the election under
the provision (and consequently joint and several liability applies to both spouses).
Second, if the IRS proves that the electing spouse had actual knowledge that an item on a
return is incorrect, the election will not apply to the extent any deficiency is attributable to such
item. Such actual knowledge must be established by the evidence and shall not be inferred based
on indications that the electing spouse had a reason to know.
Third, the limitation on the liability of an electing spouse is increased by the value of any
disqualified assets received from the other spouse. Disqualified assets include any property or
right to property that was transferred to an electing spouse if the principle purpose of the transfer
is the avoidance of tax (including the avoidance of payment of tax). A rebuttable presumption
exists that a transfer is made for tax avoidance purposes if the transfer was made less than one year
before the earlier of the payment due date or the date of the notice of proposed deficiency. The
rebuttable presumption does not apply to transfers pursuant to a decree of divorce or separate
maintenance. The presumption may be rebutted by a showing that the principal purpose of the
transfer was not the avoidance of tax or the payment of tax.
Notification of taxpayers
The Internal Revenue Service is required to notify all taxpayers who have filed joint returns
of their rights to elect to limit their joint and several liability under this provision. It is expected that
notice will appear in appropriate IRS publications, including IRS Publication 1, and in collection
related notices sent to taxpayers.
The Internal Revenue Service should, whenever practicable, send appropriate notifications
separately to each spouses. For example, where notifications are being sent by registered mail, it
is expected a separate notice will be sent by registered mail to each spouse. This is intended to
increase the likelihood that separated or divorced spouses will each receive such notices, as well as
increase the likelihood that the Internal Revenue Service will be made aware of address changes
that apply to one, but not both spouses.
The provision applies to any liability for tax arising after the date of enactment and any
liability for tax arising on or before such date, but remaining unpaid as of such date.
The period in which an election may be made under the provision will not expire before the
date that is 2 years after the date of the first collection action undertaken against the electing spouse
on or after the date of enactment that has the effect of giving the spouse notice of the IRS' intention
to collect the joint liability from the spouse. However, this rule does not extend the statute of
An individual may elect under the provision without regard to whether such individual has
previously been denied innocent spouse relief under present law.
2. Suspension of statute of limitations on filing refund claims during periods of
disability (Sec. 3202 of the Bill and Sec. 6511 of the Code)
In general, a taxpayer must file a refund claim within three years of the filing of the return
or within two years of the payment of the tax, whichever period expires later (if no return is filed,
the two-year limit applies) (Sec. 6511(a)). A refund claim that is not filed within these time periods
is rejected as untimely.
There is no explicit statutory rule providing for equitable tolling of the statute of limitations.
The U.S. Supreme Court has held that Congress did not intend the equitable tolling doctrine to
apply to the statutory limitations of section 6511 on the filing of tax refund claims.
Reasons for Change
The Committee believes that, in cases of severe disability, equitable tolling should be
considered in the application of the statutory limitations on the filing of tax refund claims.
Explanation of Provision
The provision permits equitable tolling of the statute of limitations for refund claims of an
individual taxpayer during any period of the individual's life in which he or she is unable to
manage his or her financial affairs by reason of a medically determinable physical or mental
impairment that can be expected to result in death or to last for a continuous period of not less than
12 months. Tolling does not apply during periods in which the taxpayer's spouse or another
person is authorized to act on the taxpayer's behalf in financial matters.
The provision applies to periods of disability before, on, or after the date of enactment but
does not apply to any claim for refund or credit which (without regard to the provision) is barred
by the statute of limitations as of January 1, 1998.