You make the call

Question: Mary separated from her husband Joe in 2018. They have not divorced. Mary moved to another state with their minor child. For several years, Joe filed joint federal tax returns (MFJ) without including Mary’s income or having her consent. Mary has come to you for advice and wants to know what her options are in this situation. She also wishes to file her own returns. What can Mary do?

Answer: First, determine Mary’s status. Is she an injured spouse, innocent spouse or other? Injured spouse occurs when a joint refund is used to satisfy a debt owed solely by the other spouse. Innocent spouse is a request for absolution on a tax return that was filed by both parties where one spouse understates the tax and the other spouse claims they had reason to not know about it. Mary is neither. However, Mary is a victim of fraud that Joe committed when he essentially signed Mary’s name on a joint tax return. So, what is the remedy that will allow for Mary to file her own return? Should Mary:

• Complete a paper return?
• File Form 14039, Identity Theft Affidavit?
• File a police report?
• File a report with the Federal Trade Commission?
• Request an actual copy of the fraudulent return on Form 4506, Request for Copy of Tax Return, with $43 enclosed?
• Check credit reports and other financial statements?
• Put a credit freeze on accounts?
• Get an IP Pin from the IRS by using the online tool or Form 15227 (the IP PIN application)?

Although Mary’s situation could get more complex if Joe failed to pay the liability on the fraudulent return, for now, the best answer for her is to obtain an IP PIN so she can file her own original return. She can use the married filing separately (MFS) status. However, given the fact that she moved to another state with the minor child, she can probably file as Head of Household (review the section “considered unmarried”).

Note: The fact that her estranged husband used her information to file the fraudulent MFJ return may force her to file her proper return in paper form since the IRS will likely conclude a return has already been filed using her name and Social Security number and may reject an electronically filed return.