Liability for the tax debts of a divorced spouse

Marriage annulment, separation and, even more so, divorce do not stop the liability of one spouse for the tax arrears of the other spouse.

Jointly and severally responsible

The responsibility of a divorced spouse is personal and joint and several. This means that he is responsible with all his assets for tax arrears that arose during the cohabitation of marital property.

Such a burden is the result of arrears in the marriage relationship with the duration of joint property (even limited).

In the event of initiating tax proceedings, the authority will first determine the existence and the moment of termination of joint property. The abolition of the matrimonial regime may take place earlier than the date of divorce.

Example

Marital unity was abolished 3 years before the divorce. The arrears of the spouse (taxpayer) last 5 years before the divorce. Therefore, the divorced spouse's liability only covers 2 years before the decree of the abolition of the property regime.

Responsibilities

Pursuant to Art. 110 of the Tax Code (hereinafter referred to as: hereinafter: the tax law), the divorced spouse of the taxpayer is liable jointly and severally with all his property with his ex-spouse for tax arrears due to tax liabilities arising during the joint property.

This liability does not include taxes not collected or collected but not paid by the spouse acting as payer or collector. Moreover, it is not responsible for interest for late payment and enforcement costs arising after the date on which the divorce decree becomes final (Article 110 § 2 point of the GDPR).

Limitation of Liability

The divorced spouse is personally liable for the latter's tax debts, but only up to the amount of the value of his share in the joint property. The purchase price of the items included in the joint property is not important here, but the actual value of this share.

In practice, the problem is to determine the value of both the joint and the divorced spouse's share in joint property. As a rule, the spouses have equal shares, but each of them may demand the determination of unequal shares in the joint property.

There are no difficulties when the property has been divided in court. Then the value of not only the entire property is determined, but also the amount of shares of individual spouses.

It should be added that the tax authorities are not authorized to bring a court action for such a division. Also, courts cannot carry out such proceedings ex officio.

Death of an ex-spouse

Tax regulations say that in order for a spouse to be liable for the tax debts of the other spouse, both spouses must exist at the time when one of them arrears tax arrears.

Joint and several liability will be excluded upon the death of the debtor's spouse. In such a situation, the legal basis for the liability of the divorced spouse as a third party does not exist. In such a case, the taxpayer's heirs will incur the burden of paying the tax.