Legal Question in Tax Law in California

Re: unfiled 2004 joint tax return, innocent spouse?

Yes, you may be a candidate for innocent spouse relief.

Re: unfiled 2004 joint tax return, innocent spouse?

innocent spouse relief is only available related to a joint tax return which has already been filed. see:

http://www.irs.gov/taxtopics/tc205.html

you should consult a family lawyer to consider whether or not to pursue a legal separation (or marital dissolution) or file a complaint against your spouse for breach of fiduciary duty under Family Code Sections 721 & 100. you should also consult a tax attorney or cpa to definitively deal with the tax issues.

in general, however, you should file a separate tax return for 2004 (& 2005). the married filing separate return should include all of your separate property income (if any) and one-half of your community property income (unless the llc and business is separate property of your husband). you can obtain copies of statements for joint accounts from banks or other accounts by contacting the institutions directly.

if you cannot obtain any information related to community income, you should file a separate return and attach a statement that you are unable to report all possible items of income, expense or deduction as a result of the failure of your spouse to provide the information to you. if you do not eventually file an amended separate return showing the community income, you will need to be ready to prove to the irs that you attempted to obtain information from your husband.

you will still be ultimately liable for taxes on your half of community income, but not on all of the community income (as in the case of a joint return). this will also help avoid additional penalties (there will already likely be penalties for late filing of returns for both years).