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Tax filed after divorce papers served

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Calif
I served divorce papers in Sept 08. (Pro Per) They included a court order stating no community assets were to be used without the spouse's consent. The court date for temporary spousal support is in Dec.
In Oct my husband E-Filed our joint personal tax returns and had them (including the incentive refund) direct deposited into his personal checking account. His accountant said he then used it to pay the accountant for his business and LLC tax preperation.
I never saw the tax return. I did not sign it (or anything related to taxes), do not have a pin number used for E-filing, did not agree to a direct deposit, was never contacted by the accountant.
Is this a divorce issue or a tax issue?
Is he guilty of tax fraud? If so, should I turn him in? How would I do this?
Is he guilty of violating the court order about using community property without notifying me? Should I wait till the Dec court hearing and report it to the judge when asking for spousal suppost? ( it is a financially and physically abusive marriage)
Is this something I should not report?
What would be in my best interests?
 


mistoffolees

Senior Member
Calif
I served divorce papers in Sept 08. (Pro Per) They included a court order stating no community assets were to be used without the spouse's consent. The court date for temporary spousal support is in Dec.
In Oct my husband E-Filed our joint personal tax returns and had them (including the incentive refund) direct deposited into his personal checking account. His accountant said he then used it to pay the accountant for his business and LLC tax preperation.
I never saw the tax return. I did not sign it (or anything related to taxes), do not have a pin number used for E-filing, did not agree to a direct deposit, was never contacted by the accountant.
Is this a divorce issue or a tax issue?
Is he guilty of tax fraud? If so, should I turn him in? How would I do this?
Is he guilty of violating the court order about using community property without notifying me? Should I wait till the Dec court hearing and report it to the judge when asking for spousal suppost? ( it is a financially and physically abusive marriage)
Is this something I should not report?
What would be in my best interests?
It is definitely a divorce issue. It MAY be a tax issue.

I would gather all your evidence (written evidence, although if you could get the accountant to appear, his testimony would also help) and hold it in a safe place until December. You should be able to get your share of the refund returned.

If you report it to the IRS, remember that you're still married, so any penalties that are assessed may come back to you, at least at the level of there being less marital assets to split. Of course, the IRS moves slowly, so your divorce is likely to be over then, so maybe it's not a big deal, but I would wait - no need to create a hostile environment from the start when it's likely to be straightened out at the hearing in December (if you have real evidence, that is, or if you can get him to admit it).

If you don't have real evidence, then you're going to have to ask the judge to order him to give up his financial records. There's a good chance the judge would so so, but it will take more time.

You can also order a copy of the return (if he filed jointly) from the IRS. I don't know how long it takes to get that and I also don't know if it will have the information on where the money was deposited.
 

LdiJ

Senior Member
Calif
I served divorce papers in Sept 08. (Pro Per) They included a court order stating no community assets were to be used without the spouse's consent. The court date for temporary spousal support is in Dec.
In Oct my husband E-Filed our joint personal tax returns and had them (including the incentive refund) direct deposited into his personal checking account. His accountant said he then used it to pay the accountant for his business and LLC tax preperation.
I never saw the tax return. I did not sign it (or anything related to taxes), do not have a pin number used for E-filing, did not agree to a direct deposit, was never contacted by the accountant.
Is this a divorce issue or a tax issue?
Is he guilty of tax fraud? If so, should I turn him in? How would I do this?
Is he guilty of violating the court order about using community property without notifying me? Should I wait till the Dec court hearing and report it to the judge when asking for spousal suppost? ( it is a financially and physically abusive marriage)
Is this something I should not report?
What would be in my best interests?
I agree that it is a divorce issue, however it is also very much a tax issue. He had no right to file a joint tax return without your signature on a paper return or your permission for an efile. The accountant also has some fault there if the accountant did the efile, however if you have used this accountant for a long time, and your husband habitually handled the taxes without you, that might mitigate that somewhat.

If you had income of your own, then you could handle that by filing your own, married filing separately return, which would mean that the IRS would come down on your husband, however, that would create a potentally marital debt, and its possible that the judge would order you to file a joint return with him anyway.

Therefore, I would recommend treating it as completely a divorce issue and have it resolved through your marital property settlement. It could potentially be less complicated handling it that way.
 
proof

Thankyou. I will wait till the divorce hearing in Dec.
I do have some proof. The accountant is new. My husband hired him this year. We had the same accountant for 26 years before this.
I called and said I did not sign anything and could I have a copy of the return. He sent the copy with a blank E-File permission page for me to sign. I refused. He said it was legal for the checks to be deposited into HIS personal account to pay him for his services. I agreed, but said he needed my authorization to do that. I requested he refund half the money deposited, less half the amount charged to do my personal taxes. He refused.
The cover letter containing a copy of the return states the refund will be direct deposited into 'our' personal checking account. I previously told the accountant we had no shared checking or savings accounts. But he contradicted the cover letter, stating the money was direct deposited into HIS account, not my husband's.
If proof is a blank EFile authorization to file tax form (my name but no signature or date) a pin number on the tax return I never applied for, direct deposit numbers on the tax return of an account the refund was deposited, copy of tax return without my signature, nothing on file with my signature and written statements from the IRS stating the tax refunds were deposited into 'our' bank account on Oct 22 then I have proof. Is there anything else I need to get?
I'm actively looking for work, but do not have an income yet.
 

mistoffolees

Senior Member
If proof is a blank EFile authorization to file tax form (my name but no signature or date) a pin number on the tax return I never applied for, direct deposit numbers on the tax return of an account the refund was deposited, copy of tax return without my signature, nothing on file with my signature and written statements from the IRS stating the tax refunds were deposited into 'our' bank account on Oct 22 then I have proof. Is there anything else I need to get?
I'm actively looking for work, but do not have an income yet.
The blank files aren't really much help. The direct deposit directly to your stbx's account is probably going to be sufficient FOR THE DIVORCE CASE - when combined with your statement that you never authorized that. That is certainly more than enough evidence to convince most judges to ask your stbx some questions - and basically he's going to have the burden of proof that he used the money appropriately.

Rules for going to the IRS are probably different, but I would recommend trying to work it out at the divorce hearing first.
 
how to present to judge

How do you prove a negative? I didn't sign anything, so if there is no proof I did isn't that sufficient?
How do I present it to the judge?
Request he order my husband to give me half the refund and offer what proof I have? Or present it as evidence he did not abide by a court order about spending joint property...and let the judge decide what to do? Or present it as evidence of long term financial abuse during our marriage and again let the judge decide what to do? My goal is to have access to and (shared) control of community property and use of the money. I have none. Also temporary spousal support and reinstatement of health insurance he stopped paying for without my knowledge.
 

LdiJ

Senior Member
How do you prove a negative? I didn't sign anything, so if there is no proof I did isn't that sufficient?
How do I present it to the judge?
Request he order my husband to give me half the refund and offer what proof I have? Or present it as evidence he did not abide by a court order about spending joint property...and let the judge decide what to do? Or present it as evidence of long term financial abuse during our marriage and again let the judge decide what to do? My goal is to have access to and (shared) control of community property and use of the money. I have none. Also temporary spousal support and reinstatement of health insurance he stopped paying for without my knowledge.
Are you sure that the money was direct deposited into the accountant's bank account? If so, that was horribly illegal, and the accountant could get into a great deal of trouble for that.

If the accountant signed up with a bank that services tax refunds, and takes the fees out of the refund, sends it to the accountant, and then cuts a check to the taxpayer for the balance, that is legal.

As far as how your stbx spent the money, if the refund was only enough to cover the tax preparation fees, that is an acceptable spending of marital assets. If it was more, it may not be acceptable.
 

mistoffolees

Senior Member
How do you prove a negative? I didn't sign anything, so if there is no proof I did isn't that sufficient?
How do I present it to the judge?
Request he order my husband to give me half the refund and offer what proof I have? Or present it as evidence he did not abide by a court order about spending joint property...and let the judge decide what to do? Or present it as evidence of long term financial abuse during our marriage and again let the judge decide what to do? My goal is to have access to and (shared) control of community property and use of the money. I have none. Also temporary spousal support and reinstatement of health insurance he stopped paying for without my knowledge.
You obviously can't prove a negative. You state that you never signed the return and were never given access to any of the money. You show the documents proving that the refund was deposited into his personal account. Then you ask the judge to order him to account for the money.

You then request temporary support and reinstatement of the health insurance he stopped paying. You request the judge to order discovery of all assets on both sides (don't ask for just discovery of his side - it makes you look like you're trying to be unfair).

As for the rest, you need to stop worrying about 'long term financial abuse'. He acted in certain ways and you acted in certain ways. I assume you're an adult and responsible for your own actions. No one held a gun to your head and made you do whatever you did. The judge is not going to be interested in a sob story. You're getting divorced and that will be the end of it. What the judge WILL be interested in is a fair division of assets, however that is defined by your state's laws. So stick to facts and numbers - no more complaining about him being a terrible person or whatever. That is counterproductive.
 
right

You are right. No sob story. Stick to facts. That is why I am trying to get all the information I can from you guys ...what I need to present to the judge and what to leave out. So by the time the court date is here I will have weeded out all the whining and complaining and be able to present the facts and evidence. I don't want to get emotional, I want to stay in control.
Thanks for your help.
 

bummer

Junior Member
It would be very difficult to get a contempt charge for violating Standard Family Law Restraining orders. You can use community property without consent to pay an attorney or court costs. In addition, you don't need written consent when used in the course of business or for the necessities of life.
 

davew128

Senior Member
I'll just toss in a couple of thoughts here:

1) A state judge cannot order anyone (or rather force) somone to use a particular filing status on a federal tax return.
2) What happened here is sad to say, more common that we in the tax profession care to admit. Just this week something similar happened to me as a preparer. Late in 2007 I sent a 2006 return to a husband who was in the process of divorce. The return was a draft and had the word "Draft" written as a watermark across each page of the return. Fast forward to now, they are officially divorced in 2008 but the prior year return was (as far as the wife and I knew) not filed. Well not so fast. Hubby took the return that said draft on it, signed his and his wife's name on it and mailed it in. Mind you, I have the W-2s to be attached here in my office. Classy fellow.
3) If (a big if) the accountant in this case actually had the refund direct deposited into his bank account, as LDiJ points out, he is in a world of trouble as that is negotiating a client refund and a big no no under IRS professional practice standards.
4) The accountant is also required to keep the Form 8879 which was supposedly signed. It would be interesting to see what is on there for your signature, if anything.
 

mistoffolees

Senior Member
It would be very difficult to get a contempt charge for violating Standard Family Law Restraining orders. You can use community property without consent to pay an attorney or court costs. In addition, you don't need written consent when used in the course of business or for the necessities of life.
She needs to determine the amount. If it was only enough to pay for tax preparation, you're right. If it was significantly more, the excess would be marital property and subject to division.

How much money are we talking about here?
 
not enough to hire attorney

The amount (my part) is a little over $4,000 (plus half of tax incentive/refund). That's alot to me but not worth hiring an attorney.
My temporary support hearing is soon. I will bring it up then. Do I need to file anything in addition to the original temporary support motion in order to have the judge make a ruling on the tax return issue?
Could you advise me on what I need to present to the judge and how to present it?
The court hearing for the divorce is not till Sept 09. I hope to have a job by then but it is a long time to wait if I am unable to work.
I cannot live in the house with my husband till then. It is an abusive situation.
 
forgot

The tax money was ditect deposited into an account I do not recognize. It is not mine nor my husband's (that I know of). The accountant stated 'it is legal to have tne money direct deposited into his (accountant's) personal account.' How can I find whose name is on the account where my refund was deposited?
 

LdiJ

Senior Member
The tax money was ditect deposited into an account I do not recognize. It is not mine nor my husband's (that I know of). The accountant stated 'it is legal to have tne money direct deposited into his (accountant's) personal account.' How can I find whose name is on the account where my refund was deposited?
If the accountant stated that it was legal to have the money directly deposited into the accountant's account, then I think that the accountant admitted that the money went into his account.

He should be reported to the IRS. Not only did he electronically transmit a return without your signature on the 8879, but he also negotiated a client refund.
 

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