Form 8857: Request for Innocent Spouse Relief

Both people who sign a joint return are responsible for the tax, interest, and penalties on it, jointly and individually. If you believe the person you filed with should be solely responsible for an erroneous item or for an underpayment of tax from that return, you may be eligible for relief. Relief may also be open to you if you were a resident of a community property state, did not file a joint federal return, and believe you should not be held responsible for tax on an item of community income.

Some years are closed to you no matter what you check on line 1. Do not file for a year where a court made a final decision not to grant you relief. Do not file if a court did not consider relief but you meaningfully participated in the case and could have asked for it. Do not file if you entered into an offer in compromise with the IRS, or a closing agreement that disposed of the same liability. Pub. 971 covers an exception for TEFRA partnership proceedings.

• The community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
• Innocent spouse relief is not the same as injured spouse relief. If the IRS took your share of a joint refund to pay a debt owed only by the other person, use Form 8379.
• You can end up filing both forms. If you check Yes on line 1 and Yes on line 2, file Form 8857 and Form 8379.

File as soon as you become aware of a tax liability you believe only your spouse or former spouse should pay. You might learn about it because the IRS is examining your return and proposing to increase your tax, or because the IRS sends you a notice. In general you must file no later than 2 years after the first IRS attempt to collect the tax from you. Do not put it off because you are missing documents.

Different clocks apply to some requests. For equitable relief from a balance due, file within the time the IRS has to collect, generally 10 years from the date the tax was assessed. For a credit or refund, file within 3 years after the date the original return was filed or within 2 years after the date the tax was paid, whichever is later. If you want both, each time limit applies to its own piece.

Relief from tax on an item of community income, other than equitable relief, has its own deadline. File no later than 6 months before the period of limitations on assessment against your spouse or former spouse expires for that year. If the IRS starts an examination of your return during that 6-month window, the latest you can ask is 30 days after the date of the IRS initial contact letter to you. That assessment period is generally 3 years from the date you filed the return.

• An income tax refund offset against a joint liability from another year, when the IRS told you about your right to file Form 8857
• A claim filed by the IRS in a court case you were party to, or in a case involving your property, including a proof of claim in bankruptcy
• A suit filed by the United States against you to collect the joint liability
• A section 6330 notice of intent to levy and your right to a collection due process hearing, usually sent as Letter 11 or Letter 1058

Do not file this form with your tax return, and do not file it with the Tax Court. Mail it on its own, or fax it. Send it to one of these places even if you are already talking with an IRS employee about an examination, an examination appeal, or collection. Write your name and social security number on every attachment and on the top of any extra pages you add.

If you received an IRS notice of deficiency, you should also file a petition with the Tax Court before the end of the 90-day period explained in that notice, raising innocent spouse relief as a defense. Say in the petition when and why you filed Form 8857. The time for filing with the Tax Court does not stretch while the IRS is looking at your request.

• U.S. Postal Service: Internal Revenue Service, P.O. Box 120053, Covington, KY 41012
• Private delivery service: Internal Revenue Service, 7940 Kentucky Drive, Stop 840F, Florence, KY 41042
• Fax: 855-233-8558

Innocent spouse relief applies only if you filed a joint return for the years on line 3, there is an understated tax caused by erroneous items of the person you filed with, you can show you did not know and had no reason to know about it when you signed, and it would be unfair to hold you liable. An erroneous item is any income, deduction, credit, or basis left off the return or reported wrong. If you knew about part of an item but not the full extent, you may get relief for the part you did not know about.

Say a joint return showed $5,000 of tax, fully paid. The IRS later finds $10,000 of income your former spouse earned and did not report, which pushes the total tax to $6,500. The understated tax is $1,500, and both of you are liable for it. An unpaid tax is different. It is tax properly shown on your return that nobody paid, such as a $5,000 balance due on a correct joint return.

Separation of liability relief covers understated tax if the other person is deceased, or if you are now divorced, now legally separated, or have lived apart at all times during the 12-month period before the date you file. Equitable relief covers understated tax or unpaid tax when the IRS decides it would be unfair to hold you liable, and it is the only type available for unpaid tax. The fourth type is relief from tax on an item of community income.

The form asks about your education when the returns were filed, your health, who handled the household money, what you knew about the other person's income, and your current assets, income, and expenses. Some of it is personal, and the IRS says it needs the answers to judge your case. Attach a complete copy of any document the form asks for or any document you think supports your request. If you run out of room, attach more pages with your name and social security number at the top.

Sign and date the form. Without your signature the IRS cannot consider your request and will send it back to you. Keep a copy for your records. Anyone you pay to prepare the form must sign it and enter their PTIN, and must give you a copy. Someone who prepares it without charging you should not sign. Check the box on line 25 if you want a refund of tax you already paid, since the IRS will not consider a refund unless you ask.

• The IRS refunds only payments you made with your own money, and you have to prove it with something like a bank statement or a canceled check. No proof is needed if your individual refund was used to pay tax owed on a joint return for another year.
• Withholding and estimated tax payments cannot be refunded because they count as made with the joint return.
• File within 3 years after filing your return and the refund cannot be more than the tax paid in the 3 years before you filed Form 8857. File after that but within 2 years from when you paid, and it cannot be more than what you paid in those 2 years.
• Part V is not mandatory. The form lists the confidential 24-hour National Domestic Violence Hotline at 1-800-799-SAFE (7233), 1-800-787-3224 (TTY), or 1-855-812-1001 (video phone, only for deaf callers).

By law the IRS must contact your spouse or former spouse. There are no exceptions, even for victims of spousal abuse or domestic violence. That person can take part in the process by filling out a questionnaire about the tax years on line 3, and gets told about the preliminary and final determinations on a joint return request. The IRS will not disclose your current name, address, phone numbers, or employers. Other information you send in could be disclosed, so black out personal details you want kept back.

Once the IRS has what it needs, it sends a preliminary determination letter to both of you. If neither of you appeals, a final determination letter goes to both. If either appeals to the IRS Independent Office of Appeals, Appeals issues the final letter after reviewing it. If you did not file a joint return for that year, the letters go only to you.

You may be able to petition the Tax Court to review your request, other than a request about an item of community income, once the IRS sends a final determination letter or once 6 months pass from the date you filed with no final letter. The petition must be filed no later than the 90th day after the IRS mails the final determination letter. While your request is pending the IRS cannot collect from you for that year, but interest and penalties keep building, and the 10-year collection period grows by the pending time plus 60 days.