Spouse forged your signature on a tax return? What are your rights?

by Howard S. Levy, Esq. on March 14, 2010

in Innocent spouse

Your name is signed on a joint tax return, but the signature is not yours.  Your spouse signed your name, but did you agree to it?

This becomes a problem if there are taxes owed on the return from your spouse, and the IRS starts coming after you for it.   That can be a big surprise if you were in the dark to the filing.

Whether you are ultimately responsible for the taxes depends on the facts and circumstances of your filing history with your spouse.

Procedurally, unauthorized signature cases are not handled under the IRS innocent spouse rules.  Rather, the goal is to convince the IRS to adjust the return filing status from joint to separate, and remove you from a return you did not agree to.

The IRS examination of your claim will focus on whether you authorized your spouse to sign your name on the return.  Authorization does not have to be direct, i.e., “Yes, you can sign my name.” Rather, it can be implied by your actions and whether your tacitly consented to the signing of your name and the filing.  This is known as the “tacit consent” rule.

The tacit consent rule can bind you to a joint return that you did not sign if you have a history of filing with your spouse and you did not file separate returns on your own.  Your signature is authorized by implication, that is, there is “tacit consent” to it by the history of consenting to joint returns in the past.

Here is a good example of tacit consent.  In the Tax Court case of Ashworth v. Commissioner, TC Memo 1990-423, Pamela Ashworth filed joint returns with her husband during their marriage from 1976 – 1981.  The 1982 return was also filed jointly, but was audited and a balance due was found.  Pamela claimed that she never signed the return and that the signature was not authorized by her.

The Tax Court found that that Pamela’s ongoing consent to the filing of joint returns (1976-1981) and her failure to file any separate returns created a pattern of consent to the joint filing in 1982.

In other words, it is not a forgery if tacit consent is found.

Bottom line:  The determination of a joint filing depends on the intentions of the parties, not the presence or absence of their signatures.

In these cases, the knee-jerk reaction of the IRS is to presume the intent of a husband and wife is to file jointly when that is what has always been done.  I have successfully defended joint filings for clients whose signatures were forged, but the best results comes with a history of separate filings.

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