New York Advisory Opinion TSB-A-81(1)I: Is a divorced taxpayer's former spouse liable for part of the unpaid tax on a joint personal income tax return, and can the Department waive interest or penalties because the taxpayer can't currently afford to pay?

Plain-English summary

Jose D. Alfaro and his wife filed a joint New York State personal income tax return for 1978. By the time he asked the Department for guidance, the couple had divorced (April 1980), the full tax due for 1978 still hadn't been paid, and Alfaro had written and visited the Department several times explaining that recent financial losses left him unable to pay - and asking the Department to go after his ex-wife for the money instead. He didn't dispute that tax was owed, only who should have to pay it and whether interest and penalties could be excused.

The Department explained that under Tax Law section 651(b)(2)(A), spouses who file a joint return are jointly and severally liable for the resulting tax - meaning each spouse individually owes the whole amount, not just a proportional share. Because the debt is owed to the State of New York (section 651(h)), it's solely within the State's discretion to decide whether to collect the full amount from one spouse, the other, or some combination of both; the only hard limit is that the State can't collect more than the total tax, interest, additions, and penalties due, no matter how it divides collection between the two people.

On interest: section 684(a) imposes interest on unpaid tax from the original due date until it's paid, and the Tax Law contains no general waiver provision for that interest - only a narrow abatement authority under section 697(c) that didn't apply to Alfaro's situation. So the interest could not be waived or reduced. On penalties: the Department noted that a request to abate an addition to tax under section 685(a) (which can be excused for "reasonable cause" and no "willful neglect") isn't a question an Advisory Opinion can resolve - that petition portion was denied on that basis, though the Department said it would forward the penalty-abatement request to the right office within the Department for actual processing.

What this means for you

Divorced (or separated) joint filers with unpaid tax from a marriage-era return

Divorce doesn't split a joint tax debt into separate, capped shares - both former spouses remain on the hook for the entire unpaid amount, and New York decides who to pursue, not either spouse. Asking the state to collect only from your ex generally won't work as a matter of right.

Taxpayers hoping to get interest waived for financial hardship

Interest on unpaid New York personal income tax accrues automatically from the due date and generally can't be waived just because you can't currently afford to pay - the Tax Law gives the Department only very narrow abatement authority, reserved for specific circumstances unrelated to ability to pay.

Anyone seeking penalty relief

A penalty-abatement request needs to go through the Department's normal abatement process (showing reasonable cause and no willful neglect), not an Advisory Opinion request - if you ask for one in a ruling request, expect it to be redirected rather than decided there.

Common questions

Q: If my ex-spouse and I filed jointly and then divorced, can I make New York collect only from my ex?
A: No. Joint and several liability means the state can choose to collect the full amount from either spouse or split collection between both; you can't force it to pursue only your ex.

Q: Can New York waive interest on unpaid income tax because I'm having financial trouble?
A: Generally no - the Tax Law provides no waiver for interest under section 684(a) beyond a narrow abatement authority under section 697(c) that covers specific circumstances, not general inability to pay.

Q: Can I get a penalty abated through an Advisory Opinion request?
A: No - penalty abatement isn't decided through the Advisory Opinion process. The Department will forward that portion of a request to the appropriate unit for regular processing instead.

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1981.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a81_1i.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-81 (1) I
Income Tax
June 17, 1981

This Advisory Opinion supersedes Advisory Opinion numbered TSB-A-81(1)-I, dated May 26,
1981; which should be destroyed.
STATE OF NEW YORK
STATE TAX COMMISSION
ADVISORY OPINION

PETITION NO. I810217B

On February 17, 1981, a Petition for Advisory Opinion was received from Jose D. Alfaro,
41-27 169 Street, Flushing, New York 11358.
Petitioner inquires as to:
(1)

the liability of his former spouse for a portion of a joint tax liability incurred as a
result of the filing of a joint personal income tax return in a prior year, and

(2)

whether interest and additions to tax imposed under Article 22 of the Tax Law may
be waived under the circumstances described below.

Petitioner avers the following facts. Petitioner and his wife filed a joint New York State
Personal Income Tax return for the 1978 taxable year. To date, the full amount of tax due for such
taxable year has not been paid. At no time has Petitioner denied liability for the amount of tax due
but he has stated that he was ". . .not in a position to pay the amount demanded now. . . . "
Petitioner wrote to the New York State Department of Taxation and Finance (hereinafter "the
Department") on several occasions during 1979 and i980 and personally visited two different offices
of the Department. The purpose of the correspondence and visits was to explain Petitioner's inability
to pay the amount of tax due because of recent financial losses and to encourage the Department to
attempt to collect the amount of tax due from his ex-wife. Petitioner and his wife had been divorced
in April 1980. Petitioner received no response to his inquiries from the Department other than a
demand for payment of the tax due.
Section 651(b)(2)(A) of the Tax Law provides that, with certain exceptions unrelated to the
present case, if a husband and wife file a joint New York State Personal income Tax return ". . . their
tax liabilities shall be joint and several . . ."
Section 651(h) of the Tax Law provides:
"Any tax under this article, and any increase, interest or penalty thereon, shall, from the time
it is due and payable, be a personal debt of the person liable to pay the same, to the state of
New York."
Section 684(a) of the Tax Law provides that "If any amount of income tax is not paid on or
before the last date prescribed in this article for payment, interest on such amount ... shall be paid
for the period from such last date to the date paid "No provision is made in the Tax Law for waiver
JAMES H. TULLY., COMMISSIONER
TP-8 (4/80)

LOUIS M. JACOBSON, DEPUTY COMMISSIONER
FRANK J. PUCCIA, DIRECTOR

-2­
TSB-A-81 (1) I
Income Tax
June 17, 1981

or modification of interest imposed under section 684(a) of the Tax Law, except for the very limited
authority granted to the Tax Commission (in section 697(c) of the Tax Law),to abate interest in
specified circumstances not present here.
Section 685(a) of the Tax Law provides for additions to tax for failure to file a tax return,
failure to pay tax shown on a return or failure to pay tax required to be shown on a return, ". . .unless
it is shown that such failure is due to reasonable cause and not due to willful neglect. . . . "
Accordingly, pursuant to section 651(b)(2)(A) of the Tax Law, Petitioner and his wife are
jointly and severally liable for the tax in question. Since they are jointly and severally liable, the
amount of tax due may properly be collected entirely from Petitioner, entirely from Petitioner's wife
or partially from each. Of course, in no event may more than the full amount of tax, interest,
additions and penalties due be collected from either spouse or both. However, since, pursuant to
section 651(h) of the Tax Law, the tax is a debt owed to the State of New York, it is solely within
the discretion of the State of New York to decide from whom the tax will be collected.
Furthermore, since no applicable provision is made in the Tax Law for waiver or
modification of interest imposed under section 684(a) of the Tax Law, the amount of interest
imposed upon Petitioner pursuant to that provision may not be waived or modified.
A request for an abatement of penalty is not the proper subject for an Advisory Opinion. The
present Petition must therefore be denied with respect to such request. However, such request will
be forwarded to the appropriate authority within the Department of Taxation and Finance for
processing. Petitioner will be advised by letter of the details of such transmittal.

DATED: May 29, 1981

s/LOUIS ETLINGER
Deputy Director
Technical Services Bureau