Domestic Violence and Tax Issues
We all have to file taxes, including victims of domestic violence. For them, this requirement can present particular challenges, including giving the abuser an opportunity to further abuse the victim. The safety implications of decisions like filing jointly vs. separately, claiming children as dependents, and inaccurate returns that may have been filed in the past need to be considered.
This Q&A was conducted with Laura A. Russell, Esq., Supervising Attorney, Family/Domestic Violence Unit, The Legal Aid Society, Bronx Neighborhood Office
Q: What are some examples of how an abuser can utilize the tax system to further abuse a victim?
A: While partners are married, many abusers will sign the victim’s name to joint tax returns. In those returns, victim’s income may not be accurate. This could lead to problems, especially if the victim is not a citizen and will be applying for citizenship in the future, as accurate filing of returns is a question for immigration. Also, many abusers, whether married to the victim or not, will prepare fraudulent tax returns and either force their victims to sign the return or “e” file the returns, so no signature is recorded with the IRS.
When parties are not married but have children in common, many non-custodial abusers will falsely claim the child or children (even step children). They do this by filing their tax returns before the survivor. As the IRS does not have any information on who should claim the dependent exemption, they allow the exemption to be claimed. When the survivor goes to “e” file, she is denied the exemption because the abuser has already received it.
Q: How can victims protect themselves from these types of abuses?
A: The best protection for a victim is to file her tax returns and to file them as soon as possible. If she is the custodial parent, she should file and claim the children, unless there is a prior agreement regarding claiming the dependent exemption.
The survivor should keep all documents showing she has been the custodial parent if there is no order stating she has physical custody. These documents will assist her in proving to the tax authorities that she has the right to claim her children. Some documents proving this include school or medical documents showing the address of the child as the survivor’s address.
If the victim has been forced to file tax returns, she should obtain a copy of her taxes, which can be obtained through the IRS for a fee. State returns can also be obtained through the New York State Department of Taxation website. She may need to amend her tax returns.
Q: Are there any laws that can help a victim with some of these challenges?
A: The Internal Revenue Code, Section 151 and 152 discuss the dependency exemption in detail. The survivor who has physical custody of the child always has the right to claim the child unless the right is given away in a stipulation or order.
The married victim also has the right to file apart from her abuser/husband, regardless of whether she is physically separated or not. Of course, she can only file one return, so if she is not safe filing this way, she should not.
If the survivor has filed taxes with the abuser and there is a tax debt owed, she might be able to file Innocent Spouse Relief. This relief must be filed for both federal and state tax returns if money is owed to both tax agencies. The relief is available to allow the survivor the ability to only pay back taxes on her actual income. This is usually done simultaneously with the filing of any amended return. A survivor should seek the advice of an attorney prior to filing for this relief. Also, the abuser will know the survivor has filed for this relief, as the IRS must inform them.
See more about Innocent Spouse Relief.
Q: Are there resources available to assist victims in filing taxes?
A: Low-to moderate-income taxpayers can go to Volunteer Income Tax Assistance (VITA) sites, sometimes called Low Income Taxpayer Clinics, for free tax help. VITA sites can be found all over the country and are usually located in convenient places like community or neighborhood centers, libraries, schools, or shopping malls. Sites are staffed by competent trained volunteer tax advocates who, in addition to basic tax preparation, are also familiar with issues specific to low income taxpayers, such as Earned Income Tax credits and Child Tax credits. A list of VITA sites can be found at the Internal Revenue Service website or by calling 1-800-906-9887.