 |
United States Code (Last Updated: May 24, 2014) |
 |
Title 26. INTERNAL REVENUE CODE |
|
SubTitle F. Procedure and Administration |
|
Chapter 61. INFORMATION AND RETURNS |
|
SubChapter A. Returns and Records |
|
Part II. TAX RETURNS OR STATEMENTS |
|
SubPart B. Income Tax Returns |
§ 6015. Relief from joint and several liability on joint return
-
(a) In general Notwithstanding section 6013(d)(3)— (1) an individual who has made a joint return may elect to seek relief under the procedures prescribed under subsection (b); and (2) if such individual is eligible to elect the application of subsection (c), such individual may, in addition to any election under paragraph (1), elect to limit such individual’s liability for any deficiency with respect to such joint return in the manner prescribed under subsection (c). Any determination under this section shall be made without regard to community property laws. (b) Procedures for relief from liability applicable to all joint filers (1) In general Under procedures prescribed by the Secretary, if— (A) a joint return has been made for a taxable year; (B) on such return there is an understatement of tax attributable to erroneous items of one individual filing the joint return; (C) the other individual filing the joint return establishes that in signing the return he or she did not know, and had no reason to know, that there was such understatement; (D) taking into account all the facts and circumstances, it is inequitable to hold the other individual liable for the deficiency in tax for such taxable year attributable to such understatement; and (E) the other individual elects (in such form as the Secretary may prescribe) the benefits of this subsection not later than the date which is 2 years after the date the Secretary has begun collection activities with respect to the individual making the election, then the other individual shall be relieved of liability for tax (including interest, penalties, and other amounts) for such taxable year to the extent such liability is attributable to such understatement. (2) Apportionment of relief If an individual who, but for paragraph (1)(C), would be relieved of liability under paragraph (1), establishes that in signing the return such individual did not know, and had no reason to know, the extent of such understatement, then such individual shall be relieved of liability for tax (including interest, penalties, and other amounts) for such taxable year to the extent that such liability is attributable to the portion of such understatement of which such individual did not know and had no reason to know.
(3) Understatement For purposes of this subsection, the term “understatement” has the meaning given to such term by section 6662(d)(2)(A).
(c) Procedures to limit liability for taxpayers no longer married or taxpayers legally separated or not living together (1) In general Except as provided in this subsection, if an individual who has made a joint return for any taxable year elects the application of this subsection, the individual’s liability for any deficiency which is assessed with respect to the return shall not exceed the portion of such deficiency properly allocable to the individual under subsection (d).
(2) Burden of proof Except as provided in subparagraph (A)(ii) or (C) of paragraph (3), each individual who elects the application of this subsection shall have the burden of proof with respect to establishing the portion of any deficiency allocable to such individual.
(3) Election (A) Individuals eligible to make election (i) In general An individual shall only be eligible to elect the application of this subsection if— (I) at the time such election is filed, such individual is no longer married to, or is legally separated from, the individual with whom such individual filed the joint return to which the election relates; or (II) such individual was not a member of the same household as the individual with whom such joint return was filed at any time during the 12-month period ending on the date such election is filed. (ii) Certain taxpayers ineligible to elect If the Secretary demonstrates that assets were transferred between individuals filing a joint return as part of a fraudulent scheme by such individuals, an election under this subsection by either individual shall be invalid (and section 6013(d)(3) shall apply to the joint return).
(B) Time for election An election under this subsection for any taxable year may be made at any time after a deficiency for such year is asserted but not later than 2 years after the date on which the Secretary has begun collection activities with respect to the individual making the election.
(C) Election not valid with respect to certain deficiencies If the Secretary demonstrates that an individual making an election under this subsection had actual knowledge, at the time such individual signed the return, of any item giving rise to a deficiency (or portion thereof) which is not allocable to such individual under subsection (d), such election shall not apply to such deficiency (or portion). This subparagraph shall not apply where the individual with actual knowledge establishes that such individual signed the return under duress.
(4) Liability increased by reason of transfers of property to avoid tax (A) In general Notwithstanding any other provision of this subsection, the portion of the deficiency for which the individual electing the application of this subsection is liable (without regard to this paragraph) shall be increased by the value of any disqualified asset transferred to the individual.
(B) Disqualified asset For purposes of this paragraph— (i) In general The term “disqualified asset” means any property or right to property transferred to an individual making the election under this subsection with respect to a joint return by the other individual filing such joint return if the principal purpose of the transfer was the avoidance of tax or payment of tax.
(ii) Presumption (I) In general For purposes of clause (i), except as provided in subclause (II), any transfer which is made after the date which is 1 year before the date on which the first letter of proposed deficiency which allows the taxpayer an opportunity for administrative review in the Internal Revenue Service Office of Appeals is sent shall be presumed to have as its principal purpose the avoidance of tax or payment of tax.
(II) Exceptions Subclause (I) shall not apply to any transfer pursuant to a decree of divorce or separate maintenance or a written instrument incident to such a decree or to any transfer which an individual establishes did not have as its principal purpose the avoidance of tax or payment of tax.
(d) Allocation of deficiency For purposes of subsection (c)— (1) In general The portion of any deficiency on a joint return allocated to an individual shall be the amount which bears the same ratio to such deficiency as the net amount of items taken into account in computing the deficiency and allocable to the individual under paragraph (3) bears to the net amount of all items taken into account in computing the deficiency.
(2) Separate treatment of certain items If a deficiency (or portion thereof) is attributable to— (A) the disallowance of a credit; or (B) any tax (other than tax imposed by section 1 or 55) required to be included with the joint return; and such item is allocated to one individual under paragraph (3), such deficiency (or portion) shall be allocated to such individual. Any such item shall not be taken into account under paragraph (1). (3) Allocation of items giving rise to the deficiency For purposes of this subsection— (A) In general Except as provided in paragraphs (4) and (5), any item giving rise to a deficiency on a joint return shall be allocated to individuals filing the return in the same manner as it would have been allocated if the individuals had filed separate returns for the taxable year.
(B) Exception where other spouse benefits Under rules prescribed by the Secretary, an item otherwise allocable to an individual under subparagraph (A) shall be allocated to the other individual filing the joint return to the extent the item gave rise to a tax benefit on the joint return to the other individual.
(C) Exception for fraud The Secretary may provide for an allocation of any item in a manner not prescribed by subparagraph (A) if the Secretary establishes that such allocation is appropriate due to fraud of one or both individuals.
(4) Limitations on separate returns disregarded If an item of deduction or credit is disallowed in its entirety solely because a separate return is filed, such disallowance shall be disregarded and the item shall be computed as if a joint return had been filed and then allocated between the spouses appropriately. A similar rule shall apply for purposes of section 86.
(5) Child’s liability If the liability of a child of a taxpayer is included on a joint return, such liability shall be disregarded in computing the separate liability of either spouse and such liability shall be allocated appropriately between the spouses.
(e) Petition for review by Tax Court (1) In general In the case of an individual against whom a deficiency has been asserted and who elects to have subsection (b) or (c) apply, or in the case of an individual who requests equitable relief under subsection (f)— (A) In general In addition to any other remedy provided by law, the individual may petition the Tax Court (and the Tax Court shall have jurisdiction) to determine the appropriate relief available to the individual under this section if such petition is filed— (i) at any time after the earlier of— (I) the date the Secretary mails, by certified or registered mail to the taxpayer’s last known address, notice of the Secretary’s final determination of relief available to the individual, or (II) the date which is 6 months after the date such election is filed or request is made with the Secretary, and (ii) not later than the close of the 90th day after the date described in clause (i)(I). (B) Restrictions applicable to collection of assessment (i) In general Except as otherwise provided in section 6851 or 6861, no levy or proceeding in court shall be made, begun, or prosecuted against the individual making an election under subsection (b) or (c) or requesting equitable relief under subsection (f) for collection of any assessment to which such election or request relates until the close of the 90th day referred to in subparagraph (A)(ii), or, if a petition has been filed with the Tax Court under subparagraph (A), until the decision of the Tax Court has become final. Rules similar to the rules of section 7485 shall apply with respect to the collection of such assessment.
(ii) Authority to enjoin collection actions Notwithstanding the provisions of section 7421(a), the beginning of such levy or proceeding during the time the prohibition under clause (i) is in force may be enjoined by a proceeding in the proper court, including the Tax Court. The Tax Court shall have no jurisdiction under this subparagraph to enjoin any action or proceeding unless a timely petition has been filed under subparagraph (A) and then only in respect of the amount of the assessment to which the election under subsection (b) or (c) relates or to which the request under subsection (f) relates.
(2) Suspension of running of period of limitations The running of the period of limitations in section 6502 on the collection of the assessment to which the petition under paragraph (1)(A) relates shall be suspended— (A) for the period during which the Secretary is prohibited by paragraph (1)(B) from collecting by levy or a proceeding in court and for 60 days thereafter, and (B) if a waiver under paragraph (5) is made, from the date the claim for relief was filed until 60 days after the waiver is filed with the Secretary. (3) Limitation on Tax Court jurisdiction If a suit for refund is begun by either individual filing the joint return pursuant to section 6532— (A) the Tax Court shall lose jurisdiction of the individual’s action under this section to whatever extent jurisdiction is acquired by the district court or the United States Court of Federal Claims over the taxable years that are the subject of the suit for refund, and (B) the court acquiring jurisdiction shall have jurisdiction over the petition filed under this subsection. (4) Notice to other spouse The Tax Court shall establish rules which provide the individual filing a joint return but not making the election under subsection (b) or (c) or the request for equitable relief under subsection (f) with adequate notice and an opportunity to become a party to a proceeding under either such subsection.
(5) Waiver An individual who elects the application of subsection (b) or (c) or who requests equitable relief under subsection (f) (and who agrees with the Secretary’s determination of relief) may waive in writing at any time the restrictions in paragraph (1)(B) with respect to collection of the outstanding assessment (whether or not a notice of the Secretary’s final determination of relief has been mailed).
(f) Equitable relief Under procedures prescribed by the Secretary, if— (1) taking into account all the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or any deficiency (or any portion of either); and (2) relief is not available to such individual under subsection (b) or (c), the Secretary may relieve such individual of such liability. (g) Credits and refunds (1) In general Except as provided in paragraphs (2) and (3), notwithstanding any other law or rule of law (other than section 6511, 6512(b), 7121, or 7122), credit or refund shall be allowed or made to the extent attributable to the application of this section.
(2) Res judicata In the case of any election under subsection (b) or (c) or of any request for equitable relief under subsection (f), if a decision of a court in any prior proceeding for the same taxable year has become final, such decision shall be conclusive except with respect to the qualification of the individual for relief which was not an issue in such proceeding. The exception contained in the preceding sentence shall not apply if the court determines that the individual participated meaningfully in such prior proceeding.
(3) Credit and refund not allowed under subsection (c) No credit or refund shall be allowed as a result of an election under subsection (c).
(h) Regulations The Secretary shall prescribe such regulations as are necessary to carry out the provisions of this section, including— (1) regulations providing methods for allocation of items other than the methods under subsection (d)(3); and (2) regulations providing the opportunity for an individual to have notice of, and an opportunity to participate in, any administrative proceeding with respect to an election made under subsection (b) or (c) or a request for equitable relief made under subsection (f) by the other individual filing the joint return.
Prior Provisions
A prior section 6015, acts Aug. 16, 1954, ch. 736, 68A Stat. 737;
Amendments
2006—Subsec. (e)(1). Pub. L. 109–432, § 408(a), inserted “, or in the case of an individual who requests equitable relief under subsection (f)” after “apply” in introductory provisions.
Subsec. (e)(1)(A)(i)(II). Pub. L. 109–432, § 408(b)(1), inserted “or request is made” after “filed”.
Subsec. (e)(1)(B)(i). Pub. L. 109–432, § 408(b)(2), inserted “or requesting equitable relief under subsection (f)” after “subsection (b) or (c)” and “or request” after “such election”.
Subsec. (e)(1)(B)(ii). Pub. L. 109–432, § 408(b)(3), inserted “or to which the request under subsection (f) relates” before period at end.
Subsec. (e)(4). Pub. L. 109–432, § 408(b)(4), inserted “or the request for equitable relief under subsection (f)” after “subsection (b) or (c)”.
Subsec. (e)(5). Pub. L. 109–432, § 408(b)(5), inserted “or who requests equitable relief under subsection (f)” after “subsection (b) or (c)”.
Subsec. (g)(2). Pub. L. 109–432, § 408(b)(6), inserted “or of any request for equitable relief under subsection (f)” after “subsection (b) or (c)”.
Subsec. (h)(2). Pub. L. 109–432, § 408(b)(7), inserted “or a request for equitable relief made under subsection (f)” after “subsection (b) or (c)”.
2000—Subsec. (c)(3)(B). Pub. L. 106–554, § 1(a)(7) [title III, § 313(a)(1)], substituted “may be made at any time after a deficiency for such year is asserted but” for “shall be made”.
Subsec. (e)(1). Pub. L. 106–554, § 1(a)(7) [title III, § 313(a)(3)(A)], inserted “against whom a deficiency has been asserted and” after “individual” in introductory provisions.
Subsec. (e)(1)(A). Pub. L. 106–554, § 1(a)(7) [title III, § 313(a)(3)(B)], amended heading and text of subpar. (A) generally. Prior to amendment, text read as follows: “The individual may petition the Tax Court (and the Tax Court shall have jurisdiction) to determine the appropriate relief available to the individual under this section if such petition is filed during the 90-day period beginning on the date on which the Secretary mails by certified or registered mail a notice to such individual of the Secretary’s determination of relief available to the individual. Notwithstanding the preceding sentence, an individual may file such petition at any time after the date which is 6 months after the date such election is filed with the Secretary and before the close of such 90-day period.”
Subsec. (e)(1)(B)(i). Pub. L. 106–554, § 1(a)(7) [title III, § 313(a)(3)(C)], substituted “until the close of the 90th day referred to in subparagraph (A)(ii)” for “until the expiration of the 90-day period described in subparagraph (A)” and inserted “under subparagraph (A)” after “filed with the Tax Court”.
Subsec. (e)(2). Pub. L. 106–554, § 1(a)(7) [title III, § 313(a)(3)(D)(ii)], amended heading and text of par. (2) generally. Prior to amendment, text read as follows: “The running of the period of limitations in section 6502 on the collection of the assessment to which the petition under paragraph (1)(A) relates shall be suspended for the period during which the Secretary is prohibited by paragraph (1)(B) from collecting by levy or a proceeding in court and for 60 days thereafter.”
Subsec. (e)(3). Pub. L. 106–554, § 1(a)(7) [title III, § 313(a)(2)(B)], amended par. (3) generally, substituting “Limitation on Tax Court jurisdiction” for “Applicable rules” in heading and restating provisions relating to limitations on the Tax Court’s jurisdiction and eliminating provisions relating to res judicata and allowance of credits or refunds in text.
Subsec. (e)(5). Pub. L. 106–554, § 1(a)(7) [title III, § 313(a)(3)(D)(i)], added par. (5).
Subsecs. (g), (h). Pub. L. 106–554, § 1(a)(7) [title III, § 313(a)(2)(A)], added subsec. (g) and redesignated former subsec. (g) as (h).
1998—Subsec. (e)(3)(A). Pub. L. 105–277 substituted “of subsection (b) or (f)” for “of this section”.
Effective Date Of Amendment
Pub. L. 109–432, div. C, title IV, § 408(c),
Pub. L. 106–554, § 1(a)(7) [title III, § 313(f)],
Amendment by Pub. L. 105–277 effective as if included in the provision of the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105–206, to which such amendment relates, see section 4002(k) of Pub. L. 105–277, set out as a note under section 1 of this title.
Effective Date
Pub. L. 105–206, title III, § 3201(g),
Miscellaneous
Pub. L. 105–206, title III, § 3201(c),