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 any other documents and statements you attach.
Complete line 1 to determine if you should file Form 8857.
Whether you check “Yes” or “No,” you should go to line 2 (discussed next) to find out if you should file another form (Form 8379) to request injured spouse relief. Injured spouse relief is different from innocent spouse relief and you cannot request it by filing Form 8857. You must file Form 8379. For example, if you check “Yes” on line 1 and “Yes” on line 2, you will have to file both Forms 8857 and 8379.
Complete line 2 to determine if you should file Form 8379.
Check “Yes” for any tax year to which all of the following apply.
You filed a joint return.
At the time you filed the joint return, your spouse owed past-due federal tax, state income tax, state unemployment compensation debts, 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, 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 you checked “Yes” on line 1, and all three of the above do not apply, check “No” and go to line 3.
You and your spouse filed your joint tax return showing a refund of $3,200. At the time you filed the return, your spouse owed $2,400 in back child support. The IRS used $2,400 of your refund to pay your spouse's back child support and refunded the remaining $800 to you and your spouse. You check “Yes” on line 2 because you meet all of the conditions listed above. If you want to get back your share of the $2,400 refund that the IRS used to pay your spouse's back child support, you must file Form 8379.
The facts are the same as in Example 1, but the IRS audited your return and disallowed a $5,000 alimony deduction, which was actually child support paid by your spouse. Child support is not deductible. The disallowance resulted in additional tax, interest, and penalties. As explained earlier under Innocent Spouse Relief, this deduction is an erroneous item attributable to your spouse. You believe you meet the other requirements in that discussion for getting innocent spouse relief. You check “Yes” on line 1. In addition to Form 8379, you also should file Form 8857.
Enter your current name, social security number, current mailing address (including county), and best or safest daytime phone number (between 6 a.m. and 5 p.m. Eastern Time) to call you if we need more information.
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.
If you wish to have the note removed from your account, call us at 1-855-851-2009 or write us at either of the addresses or the fax number listed earlier under Where To File. Please include your social security number on your written request.
By law, if a person's name is signed to a return, it is presumed to be signed by that person, unless that person proves otherwise. If you believe your signature was forged or you signed under duress, explain in the space provided.
If you sign a joint return under duress or your signature was forged, the election to file jointly is not valid and you have no valid return. You are not jointly and severally liable for any income tax liabilities arising from that return. In that case, innocent spouse relief does not apply and is not necessary for obtaining relief. If you file Form 8857, but also maintain that there is no valid joint return due to duress or forgery, the IRS will first make a determination as to the validity of the joint return and may accordingly deny the request for innocent spouse relief based on the fact that no joint return was filed (and thus, relief is not necessary). If it is ultimately determined that a valid joint return was filed, the IRS will then consider whether you would be entitled to innocent spouse relief on the merits.
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.
You must indicate that you want a refund of any payments you made in order for the IRS to consider whether you are entitled to it. Payments include refunds from another tax year applied to this tax liability. If you are granted relief, refunds are:
Permitted under innocent spouse relief and equitable relief as explained below under Limit on Amount of Refund.
Not permitted under separation of liability relief.
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.
You are not eligible for refunds of payments made with the joint return, joint payments, or payments that your spouse (or former spouse) made. For example, withholding tax and estimated tax payments cannot be refunded because they are considered made with the joint return. However, you may be entitled to a refund of your portion of a joint overpayment from another year that was applied to the joint tax for a different year. You will need to show your portion of the joint overpayment.
The amount of your refund is limited. Read the chart at the top of the next page 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.|
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.
Generally, anyone you pay to prepare Form 8857 must sign it and include their Preparer Tax Identification Number (PTIN) in the space provided. The preparer must give you a copy of Form 8857 for your records. Someone who prepares Form 8857 but does not charge you should not sign it.
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