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Every time spouses sign joint returns, knowingly or not they accept joint and several liability, meaning that either spouse may be held liable for all of the tax due on the joint return. Although joint and several liability facilitates tax collection, it may conflict with a spouse’s claims to have signed the return while being lied to, abused, or manipulated. The question for Congress is how to balance these competing demands. Innocent spouse relief provides some tax relief for spouses Congress does not believe should be jointly and severally liable. The existence of this relief also offers an opportunity to explore how the government views married women, as wives have always composed the lion’s share of seekers and recipients of innocent spouse relief. The relief currently provided is both over- and under-inclusive by (1) not offering relief to all spouses or former spouses who are unable to assess the validity of their returns and (2) offering relief to some who both knew of, and helped orchestrate, tax evasion. This Article argues that the existing innocent spouse relief regime should be replaced with one that respects joint filers’ agency when signing joint returns and affords relief only when a joint filer was unable to exercise that agency. In the event that a spouse is coerced into signing the return, relief needs to be speedier and less burdensome in application than under today’s law. This approach would increase the equity of the tax system and reduce the administrative costs on both the taxpayer and the government.


This article was published in 37 Harv. Women's L.J. 141 (2014).