It was a Monday morning at the IRS Office of Chief Counsel. I, the bright-eyed, bushy-tailed intern was dressed in my best suit in preparation for my first meeting with a taxpayer. My attorney supervisor had explained to me that the taxpayer we were meeting was petitioning the Tax Court for innocent spouse relief. The taxpayer, a pleasant looking woman in her late sixties, gave forced laughs when she explained to us that although she was seeking relief from joint and several liability for unpaid taxes, she did not want to have to appear in court to make her case because of the possibility that her ex-husband might be there. “The last words he said to me were, ‘I’ll kill you if I ever see you again,’” she said. A forced laugh—“I just want to submit a pre-trial memorandum and hope the Court can help me.” As she told us about the abuse she suffered, she explained that she knew what was going on, but had no choice but to comply. Fifteen years after her divorce, the IRS was still hounding her for the collection of unpaid taxes because she had filed joint returns with her ex-husband. Her only chance to get relief was to petition the Tax Court. But her ex-husband, who intervened in the case, had the right to appear in court and question her. “I can’t face him,” she said. The taxpayer later dropped her petition, asking only that the IRS seek a protective order for the decision documents: “My address will be on them. I don’t want him to find me.”
Stories exactly like this one prompted Congress to reform relief from joint and several liability for “innocent spouses.” The legislative history of innocent spouse relief reveals that Congress specifically intended the relief to benefit divorced or widowed women who were subject to unbearable tax debts resulting from the actions of their husbands. However, in its zeal to help women, Congress, in writing the statute, and the courts in enforcing Congress’ action, have forced women into a corner from which they cannot retreat. To be granted relief under the innocent spouse rules, women have to show a degrading level of helplessness or a severe level of abuse. The result is that the innocent spouse rules wind up reinforcing the stereotype of a financially inept wife, totally dependent on her husband.
I. The Development of Innocent Spouse Relief
A. Joint and Several Liability
Congress first gave married couples the option of filing joint returns in 1918. It was the intent of the Bureau of Internal Revenue that such joint filers would be held joint and severally liable, as it explained in 1923: “[A] single joint return is one return of a taxable unit and not two returns of two units on one sheet of paper.” By 1938, Congress had imposed joint and several liability through statute. Joint and several liability for joint filers remains in effect today, which means that both spouses are individually liable for tax deficiencies arising from the return, whether or not they earned the income.
Perhaps recognizing the tension between joint and several liability and basic assignment of income principles central to our tax system, Congress crafted a joint and several liability escape clause. A demonstration that the return was signed under duress will relieve a taxpayer from joint and several liability. The taxpayer must show that (1) she was unable to resist demands to sign the return and (2) that she would not have signed the return except for the constraint applied her will. Because of the difficulty in proving duress, the strictness of the joint and several liability can produce overly harsh results. In a string of embezzlement cases, courts held wives liable for unreported income from their husband’s embezzled funds for failure to prove duress, a result that, in one such case, even ended with the Tax Court being “appalled.”
By the late nineties, partly in response to lobbying from the American Bar Association, Congress endeavored to study the joint and several liability relief provision, § 6013(e), to determine whether it provided “meaningful relief in all cases where such relief is appropriate.” Congress eventually decided that § 6013(e) did not afford meaningful relief; the former innocent spouse statute was repealed and Congress enacted § 6015 in its place.
B. Current Innocent Spouse Provision 26 U.S.C. § 6015
As currently enacted, the innocent spouse provision, contained in § 6015 of the Code, includes three main avenues for relief: (1) § 6015(b) provides relief for “all joint filers,” (2) § 6015(c) provides relief for divorced or separated taxpayers, and (3) § 6015(f) provides general equitable relief.
Under § 6015(b), a taxpayer can gain relief from joint and several liability where the taxpayer establishes that the joint return includes an understatement of tax attributable to erroneous items of the other spouse; that she did not know, and had no reason to know of the understatement when she signed the return; and that it is inequitable to hold the taxpayer liable in light of all the facts and circumstances. One of the major changes in § 6015(b) is that the understatement no longer needs to be “substantial.”
Under § 6015(c), relief for a taxpayer who is divorced or separated requires that the taxpayer had no actual knowledge of the deficiency, a less stringent standard than required under § 6015(b). Even where the taxpayer did have actual knowledge of the deficiency, under § 6015(c), the taxpayer can still get relief if she shows the return was filed under duress.
Section 6015(f) requires that relief is otherwise unavailable under §§ 6015(b) or (c), and that in light of all the facts and circumstances, it is generally inequitable to hold the taxpayer liable. Importantly, § 6015(f) is the only section that provides relief for an underpayment of correctly reported tax, as opposed to an understatement of tax.
A taxpayer seeking innocent spouse relief must first petition the Commissioner of the Internal Revenue Service. Where the IRS denies relief or does not respond within six months, the taxpayer may petition the Tax Court for review of the determination. Tax Court review is de novo.
II. Innocent Spouse Relief Perpetuates Stereotypical Roles For Women
A. Congress’s “White Knight” Intent
The legislative history of § 6015 reveals that in enacting the provision, Congress specifically intended to help rescue victimized women from pursuit by the IRS. In a daylong hearing on innocent spouse relief, Congress heard from four witnesses, all of whom were divorced women. Senator William Roth, Chairman of the Senate Committee on Finance, introduced the witnesses: “Most often, the innocent spouse is a former wife, a woman who knew little, if anything, about her husband’s financial dealings, his business concerns, let alone his debt with the IRS.” Senator Roth framed the issue in terms of the need to protect women who cannot be expected to know about complicated matters such as finance and business, let alone taxes. Senator Roth painted the “long-suffering, courageous” witnesses as women who each had a sympathetic tale to tell of her nefarious ex-husband and the tax burden he left for her to bear.
The first witness, Elizabeth Cockrell, described herself as “a young Canadian immigrant wife who trusted her experienced American commodity-broker husband.” Ms. Cockrell explained that she was only guilty of trusting her husband, and in return she was hounded for over $600,000. The second witness was an immigrant from Yugoslavia who married an American at age twenty-five. She explained that she relied on her husband to do the “correct thing” because she was unfamiliar with the American tax system. After her divorce, she was on the hook for $200,000 in back taxes. Because declaring bankruptcy was against her principles, she stopped working altogether on the advice of her lawyer to make her innocent spouse petition more sympathetic. The third witness, Karen Andreasen, explained that she was “excluded from our financial dealings” because she was “busy taking care of our children.” Finally, Josephine Berman, the last witness, explained that she was being held responsible for disallowed deductions her husband claimed. After Ms. Berman walked through the substance of the deductions, arising out of her husband’s fifty percent ownership in a Subchapter S corporation, she confessed that she was “not entirely sure what this means” because she “was the homemaker and [her husband] was the breadwinner.” She was liable for over $400,000.
Each of these women was presented as completely dependent on her husband, which is perhaps what made their stories even more compelling. Following the witnesses’ testimony, Senator John Chafee remarked that the point of this reform was to tell the IRS to “stop harassing these women.” The dominant representation of a helpless woman seemed to inform Congress’s intent in passing the new law. In fact, the only reference to a husband victim was made in an effort to offer a point of contrast. It is clear from the legislative history that Congress had a specific taxpayer in mind when it eventually repealed § 6013(e) and enacted the new § 6015: the innocent ex-wife.
B. The Structure of Section 6015 Reflects Congress’s Intent
Because the language of § 6015 is gender-neutral, the statute itself is less obviously informed by preconceived notions about a woman’s role in financial affairs. However, closer inspection of the structure of the statute reveals that the requirements for relief favor disenfranchised ex-wives.
The main requirement of § 6015(b) is that the taxpayer did not know or did not have reason to know of the deficiency. This requirement encourages ignorance on the part of the petitioning spouse. The less a petitioning spouse knows about the finances, the better chance that spouse has in gaining relief. Courts have looked at a spouse’s level of education in evaluating whether she had “reason to know” of the deficiency. The more educated a spouse is, the more likely the court is to deny relief on the grounds that the spouse had reason to know of the deficiency. Similarly, where a wife participates in family finances, she will almost always be deemed to have reason to know of the deficiency.
Section 6015(c) is set out to apply specifically to divorced or separated taxpayers. Actual knowledge is a subjective inquiry: Did this taxpayer know about the deficiency? Under § 6015(b), the knowledge requirement is framed as either subjective or objective: Did the taxpayer know, or have reason to know, about the deficiency? Further, unlike § 6015(b) for divorced taxpayers, the burden of proof in § 6015(c) is on the IRS to show that the taxpayer had knowledge of the deficiency. The application of the actual knowledge standard only to § 6015(c) has the effect of encouraging a taxpayer to divorce her spouse in order to have a better chance of obtaining relief.
C. Judicial Decisions Favor Women in Stereotypical Roles
Innocent spouse relief is one of the top-ten most litigated issues for the IRS. In the period since Congress enacted § 6015, eighty-five percent of taxpayers seeking relief were women. The decisions of the courts hearing these cases demonstrate a bias towards granting relief to more dependent women. Statistics show that eighty-eight percent of spouses who were granted relief by the courts were separated, divorced, or widowed at the time of trial. What is more interesting to note however, is that eighty-one percent of spouses granted relief were married at the time of filing the petition. The interplay of these statistics suggests that courts actually grant relief more frequently to spouses who become divorced. A spouse is also better off being less educated. Relief was denied in seventy-five percent of the cases where the court found that the requesting spouse was well or highly educated. A spouse’s position as the primary income earner is also a factor; however, the statistics demonstrate that courts treat this factor differently in relation to women than they do men. In cases where the husband requested relief and the wife was the primary earner, the husband never won relief; however, in cases where the wife requested relief and the husband was the primary earner, the wife won relief fifty percent of the time. Courts seem to find that husbands who are not responsible for earning most of the money for the family should still be held responsible for tax deficiencies, but the same cannot be expected of women. In cases where the petitioning spouse did not work outside the home and did not handle family finances, the petitioning spouse won 68.8 percent of the time.
Particularly alarming is courts’ treatment of issues of abuse. Generally, because neither the statute nor the Treasury Regulations define abuse, courts require proof of severe levels of abuse before allowing that factor to weigh in the petitioning spouse’s favor, requiring specific details of abuse, and preferably police reports. In sixty percent of cases where abuse is alleged, judges refused to find abuse. Judges appear hesitant to find abuse out of fear that claims of abuse are exaggerated to avoid liability because of the “obvious incentive to vilify the non-requesting spouse.”
As is demonstrated through the case statistics, courts generally seem to exercise Congress’s intent through granting or denying innocent spouse relief. The success or failure of petitions based on certain conceptions about women also has the effect of coloring the legal strategy petitioners employ, and this in turn may force women to adopt a certain role in order to gain relief from the courts.
D. Innocent Spouse Rules Reinforce Stereotypes by Affecting How Women View Themselves
The representation of women that lurks behind the innocent spouse rules may even affect the way women view themselves. As one scholar explains:
[T]he innocent spouse provision. . . may further impact women’s choices as to the role they will play in society. In order to find reprieve from joint and several liability, many women will need to establish that they are victims—and in doing so, they will convince themselves that they are victims. . . [this] can be emotionally crippling for many women who discover too late that they are financially dependent on their husbands because of the unfortunate choices they made—choices shaped largely by our tax laws.
An interesting case in point is Carol Ross Joynt, the television producer from Washington, D.C., who wrote the book “Innocent Spouse: A Memoir” and landed a feature in Vogue magazine after she successfully petitioned the court for innocent spouse relief when her wealthy husband died and left her with a $3 million tax bill.
Carol Ross Joynt seemed, on the surface, to be the antithesis of the Betty Homemaker wife: she had an education, enjoyed a good job at CNN, kept her own checking account and credit cards, and even had an Emmy award. She was the modern, sophisticated woman. That is, until she was on the hook for her late husband’s tax fraud.
Ms. Ross Joynt retained Sheldon Cohen, the former IRS Commissioner who had written the innocent spouse Code provision, to represent her interests. Cohen and his partner, Miriam Fisher, prepared a report in her defense. The report was littered with statements that reflected the bias inherent in the innocent spouse provision. One passage in the defense report read, “Throughout her adult life, Carol steadfastly avoided getting involved in financial matters because she knew they were complex and she did not understand them.” Another passage insisted dramatically, “She fell in love with Howard and believed he would be able to take care of her and would never let anything happen to her. That was her Faustian pact.”
Ms. Ross Joynt said of the report: “I wasn’t proud of what the report said about me, but not because the facts were wrong. They were right. . . When the report didn’t make me feel like a fool, it made me feel like a concubine. . . There it was, the truth, I was unable to speak. . . I was a good wife, homemaker and mother. . . I didn’t ask questions. I didn’t insist on answers. I didn’t want to know. It never occurred to me there was a problem, even though, in Howard’s last year of life, so many signs were in plain view, not the least of them his offhand mention of an audit, his frequent appointments with lawyers, and his more than occasional fitful nights.”
This was a woman who won her Emmy interviewing Charles Manson, but she never thought to ask her husband: Honey, why are we being audited by the IRS? Ms. Ross Joynt acknowledged that in the end, it was the demeaning defense report that won her the case.
Ms. Ross Joynt’s situation poses the eternal question, one that the Washington Post poignantly asked in its review of her book: “Why do allegedly smart women who competently manage their money when single blithely cede financial control the men they marry?” The answer appears to be, at least in the context of an “innocent spouse,” they have to—it is the only way to convince the IRS and the courts to grant relief.
The legislative history of innocent spouse provisions reveals that Congress specifically had in mind divorced and victimized women when it wrote the new § 6015. The structure of the statute and the factors interpreting it afford easier relief for women who are divorced, less educated, burdened, or abused. As the case statistics demonstrate, almost all innocent spouse cases are brought by women, and the most successful petitioners are divorced, less educated, secondary income earner and ignorant of financial affairs. The tax laws relating to innocent spouse as enacted and enforced augment the misconception of married women as subordinate to their husbands by forcing women to adopt a dependent role in order to gain relief from joint and several liability. And that is putting Baby in the corner.
Elizabeth K. Blenner
J.D., Temple University James E. Beasley School of Law, 2012
 Revenue Act of 1918, Pub. L. No. 254, ch. 18, § 223, 40 Stat. 1057, 1074 (1919).
 Stephanie Hunter McMahon, An Empirical Study of Innocent Spouse Relief: Do Courts Implement Congress’s Legislative Intent?, 11 Fla. Tax Rev. (forthcoming 2012) (manuscript at *5) (citing I.T. 1575, II-2 C.B. 144 (1923)).
 Revenue Act of 1938, Pub. L. No. 75-554, §51(b), 52 Stat. 447, 476 (1938).
 26 U.S.C. § 6013(d)(3).
 Brown v. Commissioner, 51 T.C. Memo 116, 119 (1968).
 See, e.g., Horn v. Commissioner, 387 F.2d 621, 622 (5th Cir. 1967); Davenport v. Commissioner, 48 T.C. 921, 927 (1967).
 See Scudder v. Commissioner, 48 T.C. 36, 41 (1967) (remarking that “only remedial legislation can soften the impact of the rule of strict individual liability.”).
 Stephanie Hunter McMahon, An Empirical Study of Innocent Spouse Relief: Do Courts Implement Congress’ s Legislative Intent?, 11 Fla. Tax Rev. (forthcoming 2012) (manuscript at *8).
 Senate Committee on Finance, Unofficial Transcript of Finance Hearing on Innocent Spouse Tax Rules, 98 TNT 32-23 (1998).
 Stephen A Zorn, Innocent Spouses, Reasonable Women and Divorce: The Gap Between Reality and the Internal Revenue Code, 3 Mich. J. Gender & L. 421, 450 (1996).
 National Taxpayer Advocate’s 2010 Annual Report to Congress, Section 3.
 McMahon, supra note 8, at *24.
 Id. at *26.
 Id. at *27.
 Id. at *28.
 Id. at *37.
 Id. at *49.
 Nishiser v. Commissioner, T.C. Memo 2008-135.
 Kari Smoker, Internal Revenue Restructuring and Reform Act of 1998: Expanded Relief for Innocent Spouses—At What Cost? A Feminist Perspective, 60 Ohio St. L.J. 2045, 2088 (1999).
 “Carol Ross Joynt: Debt Becomes Her,” Vogue Magazine, May 10, 2011 available at: http://www.vogue.com/magazine/article/carol-ross-joynt-debt-becomes-her/.
 Annie Groer, “Carol Ross Joynt’s memoir ‘Innocent Spouse,’” Washington Post, May 6, 2011, available at http://www.washingtonpost.com/entertainment/books/carol-ross-joyns-memoir-innocent-spouse/2011/05/02/AFHL1rAG_story.html.