If I file a joint New York State income tax return with my spouse, will my separate assets become subject to the liens from tax warrants that were filed and docketed against my spouse before we married?

Plain-English summary

Petitioner had recently married. She had no tax debts of her own, but her husband had three unpaid New York State tax warrants - all filed and docketed against him before the marriage - totaling roughly $4.6 million. All required filings for the warrants were in order and each remained enforceable. Petitioner asked whether filing a joint New York State income tax return with her husband would expose her separate assets to the liens created by his pre-marriage warrants.

The Department explained how tax warrants work: once a warrant is docketed and filed with the county clerk and the Department of State, it is deemed a judgment against the taxpayer (Tax Law §§ 692(e), 1141(b)) and creates a lien against that taxpayer's real, personal, and other property (Tax Law §§ 6, 692(c), (d), (g), 1141(b)). A warrant is enforceable against personal property for 20 years from docketing (CPLR § 211(b)) and against real property for at least 10 years (Tax Law § 174-a), with both periods extendable under certain conditions.

Filing a joint income tax return makes both spouses jointly and severally liable for the tax, penalty, and interest due for that taxable year (Tax Law § 651(b)(2)). But the Department found no statute or court decision extending a warrant's lien - filed and docketed against one spouse before the marriage - to reach the other spouse's separate assets, or making the other spouse personally liable for that debt. On that basis, the Department concluded that joint filing would not subject Petitioner's separate assets to her husband's warrant liens and would not make her liable for his tax debts.

There is one important caveat: if the joint return shows a refund is due, the Department has the right to offset the entire refund - including Petitioner's share, if any - against her husband's outstanding tax debt (Tax Law §§ 171(27th), 171-f, 651(b)(6)). Petitioner can protect her portion of a refund from that offset by requesting "nonobligated spouse relief" from the Department, as described in Publication 89, Form IT-280, and the instructions accompanying Forms IT-150 and IT-201.

What this means for you

Marrying someone who owes New York back taxes

Getting married does not, by itself, put your separate assets at risk from your spouse's pre-existing New York tax warrants, and filing a joint income tax return with that spouse doesn't change that - New York has no rule that stretches a warrant's lien to reach the other spouse's separate property or makes the other spouse personally liable for the debt.

Protecting your share of a joint refund

The one place joint filing does create exposure is a refund. If a joint return produces a refund, the Department can apply the whole thing - including the non-debtor spouse's share - against the other spouse's tax debt. To avoid that, the non-debtor spouse should request nonobligated spouse relief (Form IT-280) before or when the joint return is filed, rather than assuming the refund is safe.

Common questions

Q: Will filing a joint New York return make me personally liable for my spouse's pre-marriage tax debt?
A: No. The Department found no statute or case law that makes one spouse liable for warrants docketed against the other spouse before the marriage, simply because they later file a joint return.

Q: Can the Department place a lien on my separate house or bank account because of my spouse's warrants?
A: No, provided the warrants were filed and docketed against your spouse before your marriage and the assets are truly your separate property - joint filing does not extend the warrant liens to those assets.

Q: What happens if our joint return shows we're owed a refund?
A: The Department can offset the entire refund, including your portion, against your spouse's tax debt - unless you request nonobligated spouse relief under Tax Law § 651(b)(6).

Q: How long do New York tax warrants stay enforceable?
A: A warrant is enforceable against personal property for 20 years from docketing (CPLR § 211(b)) and against real property for at least 10 years (Tax Law § 174-a(1), (2)), and both periods can be extended under certain circumstances.

Citations and references

• Tax Law § 692(e) - a docketed personal income tax warrant is deemed a judgment against the taxpayer
• Tax Law § 1141(b) - a docketed sales tax warrant is deemed a judgment against the taxpayer
• Tax Law §§ 6, 692(c), 692(d), 692(g) - docketing and filing a warrant creates a lien against the taxpayer's real, personal, and other property
• CPLR § 211(b), Tax Law § 6 - a warrant is enforceable against personal property for 20 years from docketing, subject to extension
• Tax Law §§ 174-a(1), 174-a(2), CPLR § 5203 - a warrant is a lien on and enforceable against real property for at least 10 years, extendable under certain circumstances
• CPLR § 5014 - a judgment creditor's remedy to obtain similar, expanded relief against real property
• Tax Law § 651(b)(2) - spouses filing a joint income tax return are jointly and severally liable for the tax, penalty, and interest due
• Tax Law §§ 171(27th), 171-f, 651(b)(6) - the Department's right to offset a joint refund against a spouse's tax debt, and the nonobligated spouse's right to seek relief from that offset

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_2010.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a10_9i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-10(9)I
Income Tax
October 19, 2010

Office of Counsel
Advisory Opinion Unit
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I100726B

On July 26, 2010 a Petition for Advisory Opinion was received from name redacted (hereinafter
“Petitioner”) name and address redacted. The petition asks whether the filing of a joint New York State
income tax return by Petitioner and her husband will subject Petitioner’s separate assets to the liens of
warrants filed and docketed against her husband prior to their marriage.
We conclude that the filing of a joint income tax return by Petitioner and her husband will not
subject Petitioner’s separate assets to the liens of the unpaid warrants against her husband or make
Petitioner liable for payment of her husband’s tax debts. However, if a joint income tax return is filed
showing that a tax refund is due, the Department has the right to offset the entire refund, including
Petitioner’s portion thereof if any, against her husband’s tax debts unless Petitioner acts to protect her
portion as discussed below.
Facts
Petitioner was recently married to name redacted. Petitioner has no tax debts to the Department.
However, her husband has three unpaid New York State tax warrants, each of which was filed and
docketed against him prior to their marriage. The Department’s records show that all required filings
were made with regard to each of the three warrants filed and docketed against name redacted. Each of
the warrants is still enforceable. Her husband’s total indebtedness pursuant to the warrants is
approximately $4.6 million dollars.
Analysis
When a tax warrant is docketed and filed in the appropriate county clerk’s office, the Department
is deemed to have obtained a judgment against the taxpayer for the tax or other amounts (e.g., Tax Law
§§ 692(e) and 1141(b)). The docketing and filing of the warrant in the appropriate county clerk’s office
and the New York State Department of State creates a lien in the amount of the warrant against the
taxpayer’s title to and interest in real, personal and other property (see, Tax Law §§ 6, 692(c), 692(d),
692(g) and 1141(b)). Upon completion of docketing and filing the Department may commence action to
collect upon the warrant (see, Tax Law §§ 692(f), 692(g), 692(h), 1141(a) and 1141(b)). The
Department’s records show that all required filings were made with regard to each of the three (3)
warrants filed and docketed against name redacted.
When collecting warrants, the Department uses the collection devices set forth in Article 52 of the
New York Civil Practice Law and Rules (CPLR), which is entitled Enforcement of Money Judgments.
Because a warrant is deemed to be a judgment, it is enforceable against personal property for 20 years
from the date of its docketing and filing in the appropriate county clerk’s office and the New York State
Department of State (CPLR § 211(b), Tax Law § 6). Its period of enforceability against personal property
will be extended upon the happening of certain events mentioned in CPLR § 211(b). A warrant is a lien
against and is enforceable against real property for at least 10 years from docketing (see, Tax Law §§
174-a(1), 174-a(2) and CPLR § 5203(a)). The lien and enforceability of a warrant against real property

-2-

TSB-A-10(9)I
Income Tax
October 19, 2010

can be extended under certain circumstances pursuant to CPLR § 5203(b). CPLR § 5014 may be used by
a judgment creditor to obtain similar but expanded relief with regard to real property.
Filing a joint return makes both spouses jointly and severally liable for taxes due in the taxable
year, as well as penalty and interest. (see, Tax Law § 651(b)(2)). However, our research does not reveal
any statute or court decision supporting the proposition that the filing of a joint income tax return would
subject one spouse’s separate assets to the liens of warrants against the other spouse or to payment of the
other spouse’s tax debts, when the warrants were filed and docketed against the other spouse before their
marriage. Accordingly, the filing of a joint income tax return by Petitioner and her husband will not
subject Petitioner’s separate assets to the liens of the unpaid warrants against her husband or make
Petitioner liable for payment of her husband’s tax debts.
However, if Petitioner and her husband file a joint income tax return showing that a tax refund is
due, then the Department has the right to offset the entire refund, including Petitioner’s portion thereof, if
any, against her husband’s tax debt (see, Tax Law §§ 171(27th), 171-f and 651(b)(6)). To protect herself
against that situation, Petitioner must seek relief from the Department (Tax Law § 651(b)(6)). This relief
is known as nonobligated spouse relief. See the Department’s Publication 89 dated July, 2009, Form
IT-280 and accompanying instructions, and the Combined Instructions For Forms IT-150 and IT-201
which discuss the subject.

DATED: October 19, 2010

NOTE:

/S/
DANIEL SMIRLOCK
Deputy Commissioner and Counsel

An Advisory Opinion is issued at the request of a person or entity. It is limited to the facts set
forth therein and is binding on the Department only with respect to the person or entity to
whom it is issued and only if the person or entity fully and accurately describes all relevant
facts. An Advisory Opinion is based on the law, regulations, and Department policies in
effect as of the date the Opinion is issued or for the specific time period at issue in the
Opinion.