Innocent Spouses: A Critique of the New Laws Governing Joint and Several Tax Liability

Lily Kahng

excerpted in CRITICAL TAX THEORY: AN INTRODUCTION (Bridget J. Crawford & Anthony C. Infanti, eds., Cambridge University Press 2009)


This article provides a framework for such interpretation and implementation of the new innocent spouse laws. The author presents an overview of the current tax law treatment of married joint filers under which joint and several liability is imposed unless relief is available under the new innocent spouse laws. The article then examines the tax rationales that have traditionally been offered for imposing joint and several liability. The author concludes that because the fiction of marital unity is deeply embedded in our tax system, joint and several liability for married joint filers is likely to remain the law. While it can sometimes promote legitimate goals of fairness and efficiency, as an examination of joint and several liability in tort, agency and fraudulent conveyance law reveals, it can also produce unjust or irrational results. The author’s interpretive framework is necessary to alleviate these injustices and irrationalities.