25.15.1 Introduction

Manual Transmittal

April 02, 2020

Purpose

(1) This transmits revised IRM 25.15.1, Relief from Joint and Several Liability, Introduction.

Material Changes

(1) IRM 25.15.1.1.3 - Expanded section to provide more information regarding organizational responsibilities.

(2) IRM 25.15.1.1.5 - Added section for Acronyms.

(3) IRM 25.15.1.3 - Renamed "Administrative Processes" and added general information on the process of determining innocent spouse relief.

(4) IRM 25.15.1.9.2 - Expanded to clarify authorized disclosure rules.

(5) Editorial changes and reference updates made throughout.

Effect on Other Documents

IRM 25.15.1, Introduction, dated June 26, 2017, is superseded.

Audience

Employees in all business operating divisions who have contact with taxpayers addressing an innocent spouse issue.

Effective Date

(04-02-2020)

Maha Williams
Director, Examination - Field and Campus Policy
Small Business/Self-Employed

Program Scope and Objectives

  1. Purpose: The purpose of this multi-functional IRM is to provide both technical and procedural guidance on relief from joint and several liability and relief from application of community property laws, also known as innocent spouse relief.

  2. Audience: Employees in all business divisions who have contact with taxpayers addressing an innocent spouse relief issue.

  3. Policy Owner: The policy owner is the SB/SE Director, Examination - Field and Campus Policy.

  4. Program Owner: The program owner is SB/SE Campus Exam and Field Support.

  5. Program Goals: The program goals are to properly evaluate requests for innocent spouse relief, and to fairly apply the relief provisions enacted in the Restructuring and Reform Act of 1998 (RRA 98) to each request.

Background

  1. This IRM provides general technical and procedural guidance on relief from joint and several liability and relief from application of community property laws, also known as innocent spouse relief.

  2. Married taxpayers may elect to file joint returns with their spouse per IRC 6013. This means that both taxpayers who file joint returns with each other:

    1. Have joint and several liability with respect to the income tax liability.

    2. Are responsible for the accuracy and completeness of the return.

    3. Are responsible for the payment of the income tax liability reported on the return as well as any additional tax, penalties, additions to tax, and interest.

  3. Taxpayers filing joint returns may be relieved of income tax liability, plus related penalties and interest, under certain conditions as set forth in IRC 6015, the relief provisions enacted in RRA 98.

  4. Married taxpayers filing separate returns in community property states may also be relieved of income tax liability under certain circumstances per IRC 66. See IRM 25.15.5, Relief from Community Property Laws for more information.

Authority

  1. The information in this section is based upon the following authorities:

    1. IRC 66, Treatment of Community Income.

    2. 26 CFR Section 1.66, are the regulations providing guidance on requests for relief from federal income tax liability resulting from the operation of community property law.

    3. IRC 6015, Relief from joint and several liability on joint return.

    4. 26 CFR Section 1.6015 are the regulations providing guidance on requests for relief from joint and several liability and related proposed regulations, 80 FR 72649-01 issued November 20, 2015 and 78 FR 4942 issued on August 13, 2013.

    5. Rev. Proc. 2003-19, administrative appeal rights for the non-requesting spouse.

    6. Rev. Proc. 2013-34, guidelines for taxpayers seeking equitable relief from income tax liability under section 66(c) or section 6015(f).

    7. IRC 6663(c), special rule for joint returns regarding imposition of fraud penalty.

    8. 26 CFR section 301.7122-1, Compromises.

    9. IRC 6224(c) regarding settlement agreements related to TEFRA partnership proceedings.

    10. 26 CFR section 601.508 regarding disputes between recognized representatives of a taxpayer.

    11. IRC 6103(e) regarding disclosure of joint return to either spouse or authorized representative.

    12. IRC 6213(a) regarding the right to raise innocent spouse relief in a petition for redetermination of a deficiency.

    13. IRC 6320 and IRC 6330 regarding rights to raise innocent spouse relief in a collection due process proceeding.

Responsibilities

  1. The Director, Examination - Field and Campus Policy, who is under the Director, Headquarters Examination, is responsible for the delivery of policy and guidance that impacts the field and campus examination process. See IRM 1.1.16.3.5.1, Field and Campus Policy, for additional information.

  2. Campus Exam and Field Support, which is under the Director, Examination - Field and Campus Policy, is the group responsible for providing the Servicewide policy guidance on compliance processes that relate to campus examination operations and support Field Exam and Specialty Programs in SB/SE and Large Business & International (LB&I). See IRM 1.1.16.3.5.1.5, Campus Exam and Field Support, for additional information.

  3. The Director of Examination, Field and Campus Policy is the executive responsible for the Innocent Spouse Program (ISP) by providing policy, procedural guidance and oversight to innocent spouse processing IRMs.

  4. Requests for innocent spouse relief are considered by Area Office examiners during open field examinations, and by Cincinnati Centralized Innocent Spouse Operation (CCISO) otherwise. Field Examination General Processes, under the Director, Examination - Field and Campus Policy is the group responsible for providing policy and procedural guidance on standard examination processes to field employees. CCISO falls under the responsibility of the Director, Examination - Campus, with the Director, Examination - Field and Campus Policy providing oversight to the campus innocent spouse processing IRMs.

  5. Employees with taxpayer contact may have to address an innocent spouse relief issue raised by the taxpayer. Any employee or business unit that receives a Form 8857, Request for Innocent Spouse Relief, or written statement containing the same information required on Form 8857, which is signed under penalties of perjury, is responsible for timely and properly routing the form according to instructions in this IRM.

    Note:

    Refer taxpayers to the Taxpayer Advocate Service (TAS) when the contact meets TAS criteria and you can’t resolve the taxpayer’s issue the same day. See IRM 13.1.7, Taxpayer Advocate Service (TAS) Case Criteria, for more information. The definition of "same day" is within 24 hours. "Same day" cases include cases you can completely resolve in 24 hours, as well as cases in which you have taken steps within 24 hours to begin resolving the taxpayer’s issue. Do not refer "same day" cases to TAS unless the taxpayer asks to be transferred to TAS and the case meets TAS criteria. Refer to IRM 13.1.7.4, Same Day Resolution by Operations, for more information. When you refer cases to TAS, use Form 911, Request for Taxpayer Advocate Service Assistance (And Application for Taxpayer Assistance order), and forward to TAS.

  6. Taxpayer Bill of Rights: The Taxpayer Bill of Rights (TBOR) was codified as IRC 7803(a)(3) . Under this new code subsection, the Commissioner must ensure employees are responsible for being familiar with and acting in accordance with taxpayer rights. For additional information refer to Policy 1-236 at IRM 1.2.1.2.36 , Policy Statement 1-236, Fairness and Integrity in Enforcement Selection, and the TBOR at irs.gov-Taxpayer Bill of Rights.

  7. Management officials in the Area Offices and Campuses oversee the employees who may receive such requests, and must ensure the timely and proper routing of innocent spouse relief requests per instructions in this IRM.

Terms

  1. Innocent spouse claim - A request for innocent spouse relief filed on Form 8857, Request for Innocent Spouse Relief, or a written statement containing the same information required on the Form 8857, which is signed under penalties of perjury.

  2. Requesting Spouse or RS - the spouse making the request for relief.

  3. Non-Requesting Spouse or NRS - the spouse not making the request for relief.

Acronyms

  1. The following table lists commonly used acronyms used throughout this IRM and their descriptions:

    Acronym Description
    BSOS Barred Statute One Signature
    CC Command Code
    CAF Centralized Authorization File
    CSED Collection Statute Expiration Date
    CCISO Cincinnati Centralized Innocent Spouse Operation
    ISC Innocent Spouse Coordinator
    ISP Innocent Spouse Program
    IDRS Integrated Data Retrieval System
    ISTS Innocent Spouse Tracking System
    LB&I Large Business & International
    LSDT Limited Scope Decision Tool
    NRS Non-Requesting Spouse
    OIC Offer in Compromise
    POA Power of Attorney
    RS Requesting Spouse
    RSED Refund Statute Expiration Date
    RRA98 Restructuring and Reform Act of 1998
    TC Transaction Code
    TAS Taxpayer Advocate Service
    TBOR Taxpayer Bill of Rights
    TEFRA Tax Equity and Fiscal Responsibility Act of 1982

Related Resources

  1. Other IRM chapters provide information on single topics that pertain to more than one function. Compliance employees are responsible for researching and utilizing information contained in all reference materials. The following is a list of IRM chapters pertaining to Examination programs (not all inclusive):

    • IRM 1.4.17, Compliance Managers Guide

    • IRM 3, Submission Processing

    • IRM 4, Examining Process

    • IRM 4.13, Audit Reconsideration

    • IRM 4.19.13.13, Statutory Notices

    • IRM 5.1.18, Locating Taxpayers and their Assets

    • IRM 8, Appeals

    • IRM 11.3, Disclosure of Official Information

    • IRM 13, Taxpayer Advocate Service

    • IRM 20.1, Penalty Handbook

    • IRM 20.2, Interest

    • IRM 21.1, Accounts Management and Compliance Services Operations

    • IRM 21.3, Taxpayer Contacts

    • IRM 21.3.7, Processing Third Party Authorizations onto the Centralized Authorization File (CAF)

    • IRM 25.1, Fraud Handbook

    • IRM 21.1.3.19, Informant Contacts.

    • IRM 25.6, Statute of Limitations

    • IRM 25.12, Delinquent Return Refund Hold Program

    • IRM 25.15.3, Technical Provisions of IRC 6015

    • IRM 25.15.5, Relief from Community Property Laws

    • IRM 25.15, Relief from Joint and Several Liability

  2. Additional information regarding procedural and technical aspects of the Innocent Spouse Program is available at http://mysbse.web.irs.gov/examination/tip/innocentspouse/default.aspx, and throughout IRM 25.15, Relief from Joint and Several Liability.

Joint and Several Liability

  1. Married taxpayers may elect to file joint returns with their spouse. See IRC 6013(a).

  2. IRC 6013(d)(3) provides that a husband and wife who file a joint return under IRC 6013(a) have joint and several liability with respect to the income tax liability. This means each spouse is individually responsible for:

    • The accuracy and completeness of the return; and

    • The payment of the income tax liability as reported on the return as well as any additional tax, penalties, additions to tax, and interest.

  3. Thus, under the joint and several liability concept, each spouse is responsible for the entire income tax liability even though all or part of the liability arises from income earned by or a deduction attributable to the other spouse.

  4. An election to file a joint return may only be revoked before the due date of the return, including extensions. However, an executor or administrator may revoke a joint return election made by a surviving spouse within one year of the due date of the surviving spouse’s return, (including any extension of time for filing such return). See Treas. Reg. § 1.6013-1(d)(5).

Available Relief

  1. Taxpayers filing joint returns may be relieved of income tax liability under certain conditions. Married taxpayers filing separate returns in community property states may also be relieved of income tax liability under certain circumstances. See IRM 25.15.5, Relief from Community Property Laws, for explanations on community property laws.

  2. If the income tax liability is relieved under IRC 6015, related penalties and interest are relieved.

Confusion with Other Provisions

  1. The expanded relief provisions contained in this IRM should not be confused with other provisions which may also provide relief to joint filers, such as relief available to an injured spouse. IRM 25.15.1.2.5, Injured Spouse Claims.

Return Signed Under Duress

  1. If a spouse claims he or she signed the joint tax return under duress or was coerced into signing it, the election to file a joint return may be invalid. In that case, the issue of relief from joint and several liability is not applicable. However, the Cincinnati Centralized Innocent Spouse Operation (CCISO) should work the duress issue along with the Form 8857, Request for Innocent Spouse Relief. If only one spouse signs the return, see IRM 25.15.1.2.9, Joint Assessment/One Signature. To establish a return was signed under duress, the taxpayer must demonstrate:

    1. the taxpayer was unable to resist demands to sign the return; and

    2. the taxpayer would not have signed the return except for the constraint applied by the other party. See Stanley v. Commissioner, 45 T.C. 555 (1966); Brown v. Commissioner, 51 T.C. 116 (1968).

  2. A signature made involuntarily or under duress is not a valid signature. Therefore, the election to file a joint return is not valid.

  3. The individual claiming duress is not jointly or severally liable for liabilities arising from such a return if the return was indeed signed under duress.

  4. The account should be adjusted to reflect a married filing separate return being filed by both spouses.

  5. A married filing separate tax return may need to be secured from the spouse claiming to have signed under duress if a return is required for the period or if the taxpayer may have been entitled to a refund.

    Note:

    There are certain credits not available when spouses file separate returns.

  6. A requesting spouse (RS) who raises the issue of duress and later determines he or she would owe more tax if he or she filed separately, may choose not to pursue the issue of duress.

  7. The determination of whether or not an income tax return was jointly filed presents a question of fact. The resolution of the factual issue should focus on the intention of the parties or taxpayers for the return in question. For a discussion of the factors to consider when making the determination, see United States v. Kramer, 1983 U.S. Dist. LEXIS 15951, 1983 WL 1628, 52 A.F.T.R.2d 83 5630, (D. Md.1983) and the cases cited therein.

    Note:

    See IRM 25.15.19, Non-Qualifying Requests for Relief & Complex Account Issues, for more information.

Forged Signatures

  1. When a spouse establishes his or her signature on a joint return was forged and there was no tacit (implied) consent to jointly file the return, the joint election is invalid. Again, the relief from joint and several liability provisions do not apply. See IRM 25.15.19.2.4.1, Tacit Consent Factors, for more information.

  2. The individual claiming his or her signature was forged is not jointly or severally liable for liabilities arising from such a return if the signature was indeed forged. However, CCISO should work the forged signature issue, along with the Form 8857, Request for Innocent Spouse Relief.

  3. The account should be adjusted to reflect a married filing separate return being filed by both spouses.

  4. A married filing separate tax return may need to be secured from the spouse claiming forgery if a return is required for the period, or if the taxpayer may have been entitled to a refund.

    Note:

    There are certain credits not available when spouses file separate returns.

  5. A RS who raises the issue of forgery and later determines he or she would owe more tax if he or she filed separately, may choose not to pursue the issue of forgery.

  6. In situations where the spouse claiming forgery failed to file despite having a filing requirement, the circumstances surrounding the alleged forgery should be investigated. An interview with the other spouse should be considered when developing the tacit consent issue.

  7. Consider referring the individual who forged the signature and any other individual associated with the forgery to the Criminal Investigation Division.

Injured Spouse Claims

  1. IRC 6402(a) permits the IRS to apply a taxpayer’s overpayment to any outstanding federal tax. IRC 6402(c), (d), (e) and (f) require the IRS to apply a taxpayer's overpayment to any outstanding past-due child support, federal agency debt, past-due state income tax obligation, or state unemployment compensation debt, prior to crediting the overpayment to a future tax or making a refund. This application of a tax overpayment is called a refund offset.

  2. A spouse may file an injured spouse claim on Form 8379, Injured Spouse Allocation, to recover part or all of a joint refund transferred to pay the separate liabilities of the other spouse.

  3. Where a taxpayer is making an injured spouse claim but mistakenly uses Form 8857, Request for Innocent Spouse Relief, advise the taxpayer of the difference.

    • CCISO employees should refer to IRM 25.15.18.5.1.11, Non-Qualifying Requests, for more information.

    • Area Office employees should refer to IRM 25.15.6, Field Examination Procedures, for more information.

  4. Refer to IRM 21.4.6, Refund Offset, for additional information on injured spouse procedures and the refund offset program.

Fraud Penalty

  1. IRC 6663(c) provides that in the case of a joint return, the imposition of the fraud penalty shall not apply to a spouse, unless some part of the underpayment is due to the fraud of such spouse.

  2. Where the fraud penalty is assessed against a spouse without appropriate development and explanation, that spouse should be relieved of such assessment pursuant to IRC 6663(c) and not IRC 6015.IRC 6015 does not provide for relief from penalties and interest separate from tax. See IRM 4.8.11.9.3.5, Documentation of Culpable Spouse, for more information.

Offer in Compromise (OIC)

  1. A taxpayer may file an offer to compromise his or her outstanding tax liability for a lesser amount where the taxpayer’s assets and income are insufficient to pay the full amount, where there is doubt as to the taxpayer’s liability, or where, due to exceptional circumstances, requiring full payment of the tax would cause an economic hardship or be unfair.

  2. An accepted OIC will conclusively settle the taxpayer's liability specified in the offer. See Treas. Reg. § 301.7122–1(e)(5). Once an OIC is accepted, the taxpayer may not contest the amount of the liability. Therefore, a taxpayer with an accepted OIC cannot file a claim for relief from any liability covered by the OIC. This is true even if the taxpayer later defaults on the accepted OIC.

  3. If a spouse requesting relief from joint and several liability was not a party to the other spouse’s accepted offer in compromise, then that spouse may file a claim for relief from liability.

  4. If there is a pending OIC (Integrated Data Retrieval System (IDRS) transaction code (TC) 480), for the taxpayer who also filed the innocent spouse claim, advise the taxpayer of the consequences if the OIC is accepted. For example, the acceptance of an OIC precludes the taxpayer from subsequently being considered for relief from joint and several liability for the same tax period.

  5. If relief from joint and several liability is the only issue present in an OIC (i.e., the taxpayer submits a doubt as to the liability offer), suggest the taxpayer withdraw the offer and file Form 8857, Request for Innocent Spouse Relief. See IRM 25.15.7.4.4, Offer in Compromise (OIC), for more information. The taxpayer may submit another OIC if relief is not granted through the innocent spouse provisions.

Tax Equity and Fiscal Responsibility Act (TEFRA) Settlement Agreements

  1. Generally, a RS is not entitled to relief for any liability determined by a closing agreement entered into by the RS. An exception to this rule is a settlement agreement under IRC 6224(c) entered into while the RS was a party to a pending TEFRA partnership proceeding with respect to partnership items, or penalties, additions to tax, additional amounts and interest related to adjustments to partnership items under the unified partnership audit and litigation procedures for IRC 6221 through IRC 6234 TEFRA. See Treas. Reg. § 1.6015–1(c)(2).

  2. This exception does not apply to:

    1. A settlement agreement under IRC 6224(c) entered into while the RS was not a party to a pending TEFRA partnership proceeding. For example, when a partner files a bankruptcy petition, he or she ceases to be a party to a pending TEFRA partnership proceeding and partnership items convert to non-partnership items.

    2. Non-partnership items. If the settlement agreement in which the RS was a party includes both partnership items (including affected items) and non-partnership items, the RS is not entitled to relief for the portion of the liability relating to the non-partnership items.

    3. Affected items. See Treas. Reg. § 1.6015–1(c)(2) and Treas. Reg § 1.6015–1(c)(3) for examples.

Joint Assessment/One Signature

  1. A deficiency assessed on a joint account based on the signature of only one spouse on a waiver of assessment is generally not a valid assessment with respect to the non-signing spouse. This also applies if the spouse did not sign an amended return.

  2. There can be a binding originally filed joint return even if one spouse failed to sign the return, if the parties intended to file a joint return. Thus, one must examine the parties intentions to ascertain whether the absence of one signature invalidated the return. See Federbush v. Commissioner, 34 T.C. 740 (1960), aff’d, 325 F.2d 1 (2d Cir.1963). See IRM 25.15.19.2.4.1, Tacit Consent Factors for determining the intent to file a joint return.

  3. If an invalid deficiency assessment or an assessment due to an amended return was made against a non-signing spouse, the IRS may not be able to assess the proper amount against the non-signing spouse because the statute of limitations may have expired based on the originally filed return. See IRM 25.15.19.2.2, Assessment Based on One Signature - Barred Statute One Signature (BSOS), for more information.

Administrative Processes

  1. In general, requests for relief are received in CCISO, and most are worked by CCISO through correspondence. For taxpayers who are already under examination in an Area Office, the requests are established on the Innocent Spouse Tracking System (ISTS) and then forwarded to the Area Office Innocent Spouse Coordinator (ISC) for routing to the appropriate field examiner for consideration. Occasionally, Area Office examiners receive requests directly from the taxpayers. Innocent spouse relief requests are considered as part of any open examination concurrently with deficiency determinations.

    Note:

    See IRM 25.15.6, Field Examination Procedures, for additional information applicable to Area Office examiners.

    Note:

    See IRM 25.15.18, Innocent Spouse Relief Processing Procedures, for information applicable to CCISO examiners.

  2. For all relief requests filed, the NRS must be notified and provided an opportunity to submit information relevant to the request for relief. See IRM 25.15.3.4, Notification to NRS, for more information.

    Note:

    If both spouses file requests, then both are considered the RS and NRS respectively for each request. The relief determinations for each spouse are made individually.

  3. Once information is gathered from both spouses, the determination is made, and both taxpayers are notified of the proposed relief determination and given administrative appeal rights by issuance of either Preliminary Determination Letters or examination reports issued to each spouse, depending on whether the request is being worked in CCISO or in the Area Office. If neither spouse appeals, Final Determination Letters are issued to each spouse. See IRM 25.15.3.10, Commonly Used Letters, for additional information on letters to be issued.

    Note:

    In an open Area Office exam case which is unagreed, statutory notices may be issued which include the Final Determination of innocent spouse relief, and are issued concurrently with the Final Determination letters. See IRM 4.8.9.16.11, IRC 6015: Relief from Joint and Several Liability On Joint Return(s), for more information.

  4. Once a Final Determination is made and letters/notices are issued and defaulted (no Tax Court petitions filed by either spouse), account adjustments are made if relief is granted in full or in part.

Restructuring and Reform Act of 1998 (RRA 98)

  1. RRA 98 substantially expanded the relief from joint and several liability with the enactment of IRC 6015 (RRA 98 section 3201(a).

IRC 6015

  1. IRC 6015 allows for three types of relief:

    1. Innocent Spouse Relief — IRC 6015(b);

    2. Election to Allocate a Deficiency — IRC 6015(c); and

    3. Equitable Relief — IRC 6015(f).

  2. See IRM 25.15.3, Technical Provisions of IRC 6015, for more details.

  3. See IRM 25.15.5, Relief from Community Property Laws, for details on the IRC 66(c) relief provisions.

IRC 6015 Effective Date

  1. IRC 6015 is effective for:

    • Unpaid balances as of July 22, 1998; and

    • Liabilities arising after July 22, 1998.

  2. In determining the amount unpaid as of July 22, 1998, use the date (cycle date) of payment when such payment was applied to the account.

    Example:

    John and Mary Doe had an outstanding balance on their jointly filed 1995 tax return when they timely filed their 1997 tax return, in August of 1998 with a valid extension, it showed an overpayment of $3,000. The IRS applied the $3,000 overpayment to pay the 1995 liability pursuant to IRC 6402.
    The 1997 overpayment satisfied the 1995 tax liability in full. The taxpayer now requests relief under IRC 6015 with respect to the $3,000 overpayment from 1997 that was applied toward the 1995 liability. In these circumstances, the date the tax liability was paid is the date that the Service credited the 1997 overpayment to the 1995 liability. Because the taxpayer did not file the 1997 return until August of 1998, a refund offset could not have been scheduled to transfer to the 1995 module until some time after August. Thus, an unpaid balance existed on July 22, 1998.

Limited Scope Decision Tool (LSDT)

  1. The Limited Scope Decision Tool (LSDT) is no longer valid.

Form 8857, Request for Innocent Spouse Relief

  1. Taxpayers may request relief from joint and several liability on Form 8857, Request for Innocent Spouse Relief, or a written statement containing the same information required on Form 8857, which is signed under penalties of perjury.

    Note:

    A representative, authorized by a properly completed Form 2848, Power of Attorney and Declaration of Representative, may sign Form 8857 on behalf of a RS.

  2. One Form 8857 may be used to request relief for multiple years.

    1. Form 8857 (revised January 2014) may be used to request relief for up to six years.

    2. Form 8857 (revised September 2010) may be used to request relief for up to three years.

    3. Any revision of Form 8857 or a statement, may be used to request relief for multiple years beyond the spaces provided on the form, if the information necessary to make a determination is substantially the same.

Routing of Form 8857

  1. Any office receiving a Form 8857, Request for Innocent Spouse Relief, that does not have an open exam or an assigned Status 26 collection case for the RS should date stamp and immediately (within 10 business days) mail or fax the form to:

    Cincinnati Centralized Innocent Spouse Operation (CCISO)

    Stop 840F

    7940 Kentucky Drive

    Florence, KY 41042-2915

    Fax: 855-233-8558

Time Period for Making the Request

  1. Taxpayers seeking relief under IRC 6015(b) and IRC 6015(c) must file a request no later than 2 years from the first collection activity occurring after July 22, 1998, against the RS. See IRC 6015(b)(1)(E) and IRC 6015(c)(3)(B). See IRM 25.15.3.5.1, Collection Activity, for a definition of "collection activity." See also REG-132251-11 for more information. For claims filed under IRC 6015(f), the claim is timely as long as the refund statute or collection statute is open. See IRC 6015(f) (2) for more information.

  2. Requests for relief in the form of a refund must also be filed within the normal time frame for filing a claim for refund, which is the refund statute expiration date (RSED). In order to be timely, a claim must be filed within the later of:

    • 2 years from the date of payment, or

    • 3 years from the date the return is filed.

    See IRC 6015(f)(2) for more information.

  3. Refunds are not permitted under IRC 6015(c). Refunds are permitted under IRC 6015(b) and IRC 6015(f) as long as the RS made payments and the requirements of IRC 6511 have been met.

    Note:

    The RS response on Form 8857 to the question regarding a request for refund will be considered in determining if the RS wants payments ( for example, a posted TC 670) refunded. When a RS's overpayment was offset to the year for which he/she is requesting relief, assume he/she wants a refund of the offset.

Prohibition Against Collection Actions

  1. The IRS is prohibited from taking certain collection actions against a RS, from the time the claim is filed under IRC 6015(b), IRC 6015(c), or IRC 6015(f) until:

    1. the taxpayer signs a waiver of the restrictions (Form 870-IS, Waiver of Collection Restrictions in Innocent Spouse Cases),

    2. the 90-day period for petitioning the Tax Court expires, or

    3. if a Tax Court petition is filed, until the Tax Court decision becomes final. IRC 6015(e)(1)(B).

    Notwithstanding these rules, if the RS appeals the Tax Court decision, the Service may resume the collection of the liability from the RS on the date the RS files the notice of appeal, unless the RS files an appeal bond pursuant to IRC 7485.

    Note:

    Because the RS may be denied a refund of amounts collected during the pendency of the appeal, the Service has made a policy decision not to begin collection after a notice of appeal has been filed unless the expiration of the collection statute or collection will be jeopardized by the delay.

  2. However, collection actions against the non-requesting spouse (NRS) during this period are not prohibited and should continue.

Statute of Limitations on Collection

  1. Under IRC 6015(e)(2), the collection statute expiration date (CSED) is suspended for the period for which the Service is prohibited from taking certain collection actions (see IRM 25.15.3.1.4, Terms), plus an additional 60 days. Generally, under current law, the Service is prohibited from collection and the CSED is suspended from the filing of the claim for relief (Form 8857) until:

    1. a waiver is filed (Form 870–IS, Waiver of Collection Restrictions in Innocent Spouse Cases);

    2. the expiration of the 90-day period for filing a Tax Court petition, or

    3. if a Tax Court petition is filed, until the date a Tax Court decision becomes final.

  2. Because of the amendment to IRC 6015(e) and the revision to Form 8857, treat any claim for relief filed on or after December 20, 2006, as suspending the CSED from the date the claim was received, no matter which revision of Form 8857 is used by the RS. Likewise, consider the RS’s claim for relief under all subsections of IRC 6015 no matter which revision of Form 8857 is used by the RS.

  3. For claims for relief filed before December 20, 2006, for which the RS only requested relief under IRC 6015(f), the prohibition on collection and suspension of the CSED started on December 20, 2006, and not on the date the claim for relief was received. If the claim for relief filed before December 20, 2006, also included an election under IRC 6015(b) or IRC 6015(c) then the prohibition on collection and suspension of the CSED do begin on the date the claim for relief was received.

  4. See IRM 25.15.2.4.2, Innocent Spouse Indicator Transaction Code (TC) 971/972, for rules for inputting TC 971/972 codes that control the prohibition on collection and the CSED.

Notification Requirement

  1. RRA 98 Section 3501 requires IRS to notify all joint return filers of their rights to relief from joint and several liability in all appropriate publications. See Publication 1, Your Rights as a Taxpayer, Publication 971, Innocent Spouse Relief, and Publication 594, The IRS Collection Process, and Form 1040 series instructions.

  2. Discuss joint and several liability, as well as the availability of innocent spouse relief, during the first contact with taxpayers who might qualify. Document this discussion on Form 9984, Examining Officer’s Activity Record, or other approved activity record.

  3. RRA 98 Section 3201(d) requires IRS, whenever practicable, to send any notice related to a joint return separately to each individual filing a joint return.

Power of Attorney (POA)

  1. If there is a power of attorney (POA) on file, (check IDRS Command Code (CC) CFINK) all required contact must be made with the POA and the taxpayer.

  2. If in doubt as to whether the POA is still valid, contact the representative or RS. Restrict communication to obtaining information necessary to determine the validity of the POA. If uncertainty involves a dispute between or among recognized representatives of a taxpayer, follow Treas. Reg. § 601.508 (IRC 601.508 as reprinted in Publication 216, Conference and Practice Requirements).

    Caution:

    The presence of the same representative for both parties in any innocent spouse claim can be considered a conflict of interest for the representative under Circular 230. The employee should advise the parties of this potential conflict. The employee should also confirm that each spouse has properly received their rights to relief and appeal regarding the claim.

Authorized Disclosure Rules

  1. IRC 6103(e)(1)(B) permits inspection or disclosure of a joint return, when requested in writing, to either spouse or authorized representative.

  2. IRC 6103(e)(7) permits anyone who is authorized to inspect a return to also receive return information related to the return without written request under IRC 6103(e)(1)(B) if the disclosure would not seriously impair federal tax administration.

  3. IRC 6103(e)(8) provides for disclosures pertaining to deficiencies assessed with respect to persons who have filed jointly but are no longer married or no longer reside in the same household. IRC 6103(e)(8) provides that, upon verbal or written request, certain limited collection information regarding one spouse must be disclosed to the other spouse, in writing or verbally, relative to tax deficiencies with respect to a jointly filed return. Because information provided pursuant to IRC 6103(e)(8) would be otherwise available to either spouse due to IRC 6103(e)(1), and to the extent IRC 6103(e)(7) does not prohibit release, a written or verbal request can be accepted. Written requests can be signed by either spouse or his/her duly authorized attorney-in-fact. Verbal requests can be honored if received from either spouse and/or their authorized attorney-in-fact, after verifying the identity of the person making the request to determine their right to the information. See IRM 11.3.2.4.1.1, Disclosure of Collection Activities with Respect to Joint Returns, for more information.
    Pursuant to IRC 6103(e)(8), the following information must be disclosed upon receipt of a proper request from a spouse who has been assessed the joint liability or the spouse’s authorized representative:

    • Whether the IRS has attempted to collect the deficiency from the other spouse;

    • The amount, if any, collected from the other spouse;

    • The current collection status (e.g., balance due, installment agreement, suspended); and

    • The reason for any suspension, if applicable (e.g., unable to locate, hardship).

      Note:

      Disclosure must be limited to the specific tax period associated with the requestor’s joint deficiency.

      See IRM 21.6.8.3, Disclosing Taxpayer Data, and IRM 21.1.3.2, General Disclosure Guidelines, for more information.

  4. Do not disclose the following information:

    • The other spouse’s new last name, location, or telephone number;

    • Any information about the other spouse’s employment, income or assets; or

    • The income level at which a suspended account will be reactivated.

  5. If a request for information concerning divorced or separated spouses beyond that provided for in IRC 6103(e)(8) is received, the employee may contact the Disclosure Help Desk at 866–591–0860 for guidance. In an appropriate case, the taxpayer or the taxpayer’s authorized representative may be instructed to make a Freedom of Information Act request.

Administrative and Tax Court Review of Relief Determination

  1. The administrative appeal rights and Tax Court review of a relief determination are described below.

Appeals Division

  1. In general, if relief is denied in whole or in part, the RS may appeal that determination to the IRS Appeals Division.

  2. If relief is granted in whole or part, the NRS may appeal that determination to the IRS Appeals Division.

  3. See IRM 25.15.12, Appeals Procedures.

Tax Court Review IRC 6015

  1. Under IRC 6015(e), the RS may petition the Tax Court to determine the appropriate relief available if such petition is filed by the 90th day after the final Notice of Determination denying IRC 6015 relief, or at any time if the claim has been pending for six months and the Service has not made a final determination. If the RS petitions the Tax Court, the NRS is allowed to become a party to the proceeding. See IRC 6015(e)(4).

  2. If a taxpayer petitions for redetermination of a deficiency under IRC 6213(a), the taxpayer may raise IRC 6015 as an affirmative defense.

  3. A taxpayer may raise IRC 6015 in a petition from a notice of determination in a collection due process proceeding under IRC 6320 or IRC 6330 in which the taxpayer raised innocent spouse relief.