Table of Contents
Note.
In these instructions, the term “your spouse or former spouse” means the person who was your spouse for the year(s) you want relief. This is the person whose name you enter on line 7.
When you file a joint income tax return, the law makes both you and your spouse responsible for the entire tax liability. This is called joint and several liability. Joint and several liability applies not only to the tax liability you show on the return but also to any additional tax liability the IRS determines to be due, even if the additional tax is due to the income, deductions, or credits of your spouse or former spouse. You remain jointly and severally liable for taxes, and the IRS can still collect them from you, even if you later divorce and the divorce decree states that your former spouse will be solely responsible for the tax.
If you believe that only your spouse or former spouse should be held responsible for all or part of the tax, you can request relief from the tax liability, plus related penalties and interest. To request relief, you must file Form 8857. The IRS will use the information you provide on the form and any attachments to determine if you are eligible for relief. If the IRS needs additional information, you will be contacted.
Married people who did not file joint returns, but who live in community property states may also request relief. Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. See Community Property Laws later.
Note.
We recognize that some of the questions on the form involve sensitive subjects. However, we need this information to evaluate the circumstances of your case and properly determine whether you qualify for relief.
Do not file Form 8857 for any tax year to which the following situations apply. Do not file the form even if you check “Yes” on line 4 or 5 for that year.
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In a final decision dated after July 22, 1998, a court considered whether to grant you relief from joint liability and decided not to do so.
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In a final decision dated after July 22, 1998, a court did not consider whether to grant you relief from joint liability, but you meaningfully participated in the proceeding and could have asked for relief.
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You entered into an offer in compromise with the IRS.
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You entered into a closing agreement with the IRS that disposed of the same liability for which you want to seek relief. However, see Pub. 971, Innocent Spouse Relief, for an exception that applies to TEFRA partnership proceedings.
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You check “Yes” on line 3. See the instructions for line 3 later.
You should file Form 8857 as soon as you become aware of a tax liability for which you believe only your spouse or former spouse should be held responsible. The following are some of the ways you may become aware of such a liability.
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The IRS is examining your tax return and proposing to increase your tax liability.
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The IRS sends you a notice.
However, you generally must file Form 8857 no later than 2 years after the first IRS attempt to collect the tax from you that occurs after July 22, 1998. (But see the exceptions below for different filing deadlines that apply.) For this reason, do not delay filing because you do not have all the required documentation.
Collection activities that may start the 2-year period are:
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The IRS offset your income tax refund against an amount you owed on a joint return for another year and the IRS informed you about your right to file Form 8857.
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The filing of a claim by the IRS in a court proceeding in which you were a party or the filing of a claim in a proceeding that involves your property. This includes the filing of a proof of claim in a bankruptcy proceeding.
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The filing of a suit by the United States against you to collect the joint liability.
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The issuance of a section 6330 notice, which notifies you of the IRS' intent to levy and your right to a collection due process (CDP) hearing. The collection-related notices include but are not limited to Letter 11 and Letter 1058.
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Balance Due – Generally, you must file your request within the time period the IRS has to collect the tax. Generally, the IRS has 10 years from the date the tax liability was assessed to collect the tax. In certain cases, the 10-year period is suspended. The amount of time the suspension is in effect will extend the time the IRS has to collect the tax. See Pub. 594, The IRS Collection Process, for details.
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Credit or Refund – Generally, you must file your request 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. But you may have more time to file if you live in a federally declared disaster area or you are physically or mentally unable to manage your financial affairs. See Pub. 556, Examination of Returns, Appeal Rights, and Claims for Refund, for details.
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Both a Balance Due and a Credit or Refund – If you are seeking a refund of amounts you paid and relief from a balance due over and above what you have paid, the time period for credit or refund will apply to any payments you have made, and the time period for collection of a balance due amount will apply to any unpaid liability.
Do not file Form 8857 with your tax return or the Tax Court. Instead, send it to:
Internal Revenue Service
Stop 840F, P.O. Box 120053
Covington, KY 41012
OR
Fax the form and attachments to the IRS at (859) 669-5256 or (859) 669-7187.
Write your name and social security number on any attachments.
Send it to the above address or fax it to the above number even if you are communicating with an IRS employee because of an examination, examination appeal, or collection.
If you received an IRS notice of deficiency, you also should file a petition with the Tax Court before the end of the 90-day period, as explained in the notice. In your petition, you should raise innocent spouse relief as a defense to the deficiency. By doing so, you preserve your rights if the IRS is unable to properly consider your request before the end of the 90-day period. Include the information that supports your position, including when and why you filed Form 8857 with the IRS, in your petition to the Tax Court. The time for filing with the Tax Court is not extended while the IRS is considering your request.
By law, the IRS must contact your spouse or former spouse. There are no exceptions, even for victims of spousal abuse or domestic violence.
We will inform your spouse or former spouse that you filed Form 8857 and will allow him or her to participate in the process. If you are requesting relief from joint and several liability on a joint return, the IRS must also inform him or her of its preliminary and final determinations regarding your request for relief.
However, to protect your privacy, the IRS will not disclose your personal information (for example, your current name, address, phone number(s), information about your employer, your income or assets) or any other information that does not relate to making a determination about your request for relief from liability.
Four types of relief are available. They are:
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Innocent spouse relief.
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Separation of liability relief.
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Equitable relief.
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Relief from liability arising from community property law. (See Community Property Laws later).
You may be allowed innocent spouse relief only if all of the following apply.
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You filed a joint return for the year(s) entered on line 1.
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There is an understated tax on the return(s) that is due to erroneous items (defined below) of the person with whom you filed the joint return.
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You can show that when you signed the return(s) you did not know and had no reason to know that the understated tax existed (or the extent to which the understated tax existed).
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Taking into account all the facts and circumstances, it would be unfair to hold you liable for the understated tax.
Example.
You and your former spouse filed a joint return showing $5,000 of tax, which was fully paid. The IRS later examines the return and finds $10,000 of income that your former spouse earned but did not report. With the additional income, the total tax becomes $6,500. The understated tax is $1,500, for which you and your former spouse are both liable.
You may be allowed separation of liability relief for any understated tax (defined above) shown on the joint return(s) if the person with whom you filed the joint return is deceased or you and that person:
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Are now divorced,
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Are now legally separated, or
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Have lived apart at all times during the 12-month period prior to the date you file Form 8857.
See Pub. 504, Divorced or Separated Individuals, for details on divorce and separation.
You may be allowed equitable relief if both of the following conditions are met.
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You have an understated tax (defined earlier) or underpaid tax (defined next), and
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Taking into account all the facts and circumstances, the IRS determines it would be unfair to hold you liable for the understated or underpaid tax.
Equitable relief is the only type of relief available for an underpaid tax.
Example.
You and your former spouse filed a joint return that properly reflects your income and deductions but showed an unpaid balance due of $5,000. The underpaid tax is $5,000. You gave your former spouse $2,500 and he or she promised to pay the full $5,000, but paid nothing. There is still an underpaid tax of $5,000, for which you and your former spouse are both liable.
Generally, you must follow community property laws when filing a tax return if you are married and live in a community property state. Community property states are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Generally, community property laws provide that you and your spouse are both entitled to one-half of your total community income and expenses. If you and your spouse filed a joint return in a community property state, you are both jointly and severally liable for the total liability on the return. If you request relief from joint and several liability, state community property laws are not taken into account in determining whether an item belongs to you or your spouse or former spouse.
If you were a married resident of a community property state, but did not file a joint return and are now liable for an underpaid or understated tax, check “Yes” on line 5; you have the following two ways to get relief.
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You did not file a joint return for the tax year.
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You did not include the item in gross income on your separate return.
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Under section 879(a), the item was income that belonged to your spouse or former spouse. For details, see Community Property Laws in Pub. 971.
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You establish that you did not know of, and had no reason to know of, that item.
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Under all facts and circumstances, it would not be fair to include the item in your gross income.
We will review your form for completeness and contact your spouse or former spouse to ask if he or she wants to participate in the process. Generally, once we have all of the necessary information to make a decision, we will send a preliminary determination letter to you and your spouse or former spouse. If neither of you appeals the decision, we will issue a final determination letter to both of you. If either or both of you appeal to the IRS Office of Appeals, Appeals will issue a final determination letter to both of you after consideration of your appeal.
Note.
If you did not file a joint return for the year you are requesting relief, we will send the determination letters only to you.
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The IRS sends you a final determination letter regarding your request for relief, or
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You do not receive a final determination letter from the IRS within 6 months from the date you filed Form 8857.
The petition must be filed no later than the 90th day after the date the IRS mails you a final determination letter. If you do not file a petition, or if you file it late, the Tax Court cannot review your request for relief. See Pub. 971 for details on petitioning the Tax Court.
See Pub. 971, Innocent Spouse Relief. To get Pub. 971 and other IRS forms and publications go to IRS.gov or call 1-800-TAX-FORM (1-800-829-3676).
The Low Income Taxpayer Clinic program serves individuals who have a problem with the IRS and whose income is below a certain level. LITCs are independent from the IRS. Most LITCs can provide representation before the IRS or in court on audits, tax collection disputes, and other issues for free or a small fee. If an individual’s native language is not English, some clinics can provide multilingual information about taxpayer rights and responsibilities. For more information, see Publication 4134, Low Income Taxpayer Clinic List. This publication is available at IRS.gov, by calling 1-800-TAX-FORM (1-800-829-3676), or at your local IRS office.
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