Table of Contents
If you need more room to write your answer for any question, attach more pages. Be sure to write your name and social security number on the top of all pages you attach.
Also write your name and social security number on the top of the documents and statements required by lines 2, 8, 10, 11, 12, and 13.
You must complete lines 1 through 5 to determine if you should file Form 8857.
Generally, the IRS has 10 years to collect an amount you owe. This is the collection statute of limitations. By law, the IRS is not allowed to collect from you after the 10-year period ends.
If you request relief for any tax year, the IRS cannot collect from you for that year while your request is pending. But interest and penalties continue to accrue. Your request is generally considered pending from the date the IRS receives your Form 8857 until the date your request is resolved. This includes the time the Tax Court is considering your request.
After your case is resolved, the IRS can begin or resume collecting from you. The 10-year period will be increased by the amount of time your request for relief was pending plus 60 days.
You must indicate that you want a refund in order for the IRS to consider whether you are entitled to it. If you are granted relief, refunds are:
Permitted under innocent spouse relief as explained later under Limit on Amount of Refund.
Not permitted under separation of liability relief.
Permitted in limited circumstances under equitable relief, as explained under Refunds Under Equitable Relief later.
The IRS will only refund payments you made with your own money. However, you must provide proof that you made the payments with your own money. Examples of proof are a copy of your bank statement or a canceled check. No proof is required if your individual refund was used by the IRS to pay a tax you owed on a joint tax return for another year.
In the following situations, you are eligible to receive a refund of certain payments you made.
The amount of your refund is limited. Read the following chart to find out the limit.
|IF you file Form 8857 . . .||THEN the refund cannot be more than . . .|
|Within 3 years after filing your return||The part of the tax paid within the 3 years (plus any extension of time for filing your return) before you filed Form 8857.|
|After the 3-year period, but within
2 years from the time you paid the tax
|The tax you paid within the 2 years immediately before you filed Form 8857.|
Check “Yes” for any tax year to which all of the following apply.
You filed a joint return for the year listed on line 1.
At the time you filed the joint return, your spouse owed past-due federal tax, state income tax, child support, spousal support, or federal nontax debt, such as a student loan.
The IRS used (offset) the refund to pay your spouse's past-due amount.
If all three of the above apply, do not file Form 8857 for that tax year. However, you may be able to get back your share of the refund for that tax year if you file Form 8379, Injured Spouse Allocation.
If all three of the above do not apply, check “No” and go to line 4.
Check “Yes” if a return claiming married filing jointly status was filed for the tax year listed on line 1. Check “Yes” even if you signed the return under duress or your signature was forged.
Enter your current name, social security number, current mailing address, and best daytime phone number to call you if we need more information. Also enter your county.
If your current name is different from your name as shown on your tax return for any year for which you are requesting relief, enter your former name in parentheses after your current name. For example, enter “Jane Maple (formerly Jane Oak).”
Enter the current name and SSN (if known) of the person to whom you were married at the end of the year(s) listed on
You do not know the street address, or
The post office does not deliver mail to the street address.
By law, if a person's name is signed to a return, it is presumed to be signed by that person. You must prove that your signature on the joint return was forged or that you signed under duress (threat of harm or other form of coercion). Attach a statement explaining why you believe your signature was forged or you signed under duress.
Tacit consent means that, based on your actions at the time the joint return was filed, you agreed to the filing of the joint return even if you now claim the signature on the return is not yours. Whether you have tacitly consented to the filing of the joint return is based on an examination of all the facts of your case. Factors that may support a finding that you consented to the filing of the joint return include the following.
You gave tax information (such as Forms W-2 and 1099) to your spouse.
You did not object to the filing.
There was an apparent advantage to you in filing a joint return.
You filed joint returns with your spouse or former spouse in prior years.
You failed to file a married filing separate return and you had a filing requirement.
You may not be entitled to relief if either of the following applies.
Your spouse (or former spouse) transferred property (or the right to property) to you for the main purpose of avoiding tax or payment of tax. A transfer will be presumed to meet this condition if the transfer is made after the date that is 1 year before the date on which the IRS sent its first letter of proposed deficiency.
The IRS proves that you and your spouse (or former spouse) transferred property to one another as part of a fraudulent scheme. A fraudulent scheme includes a scheme to defraud the IRS or another third party such as a creditor, former spouse, or business partner.
For more information about transfers of property, see Pub. 971.
If you do not sign Form 8857, the IRS cannot consider your request and will return it to you. Also be sure to date it.
Keep a copy of the completed form for your records.
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