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 income, deductions, or credits of your spouse or former spouse. You remain jointly and severally liable for the taxes, and the IRS still can collect from you, even if you later divorce and the divorce decree states that your former spouse will be solely responsible for the tax.
In some cases, a spouse (or former spouse) will be relieved of the tax, interest, and penalties on a joint tax return. Three types of relief are available to married persons who filed joint returns.
- Innocent spouse relief.
- Separation of liability relief.
- Equitable relief.
Married persons who did not file joint returns, but who live in community property states, may also qualify for relief. See Community Property Laws, later.
This publication explains these types of relief, who may qualify for them, and how to get them. You can also use the Innocent Spouse Tax Relief Eligibility Explorer at www.irs.gov
to see if you qualify for innocent spouse relief. Click on "Individuals," "Tax Information for Innocent Spouses," and "Explore if you are an Eligible Innocent Spouse."
This publication does not discuss injured spouse relief. You are an injured spouse if your share of the overpayment shown on your joint return was, or is expected to be, applied (offset) against your spouse's legally enforceable past-due federal taxes, state income taxes, child or spousal support payments, or a federal nontax debt, such as a student loan. If you are an injured spouse, you may be entitled to receive a refund of your share of the overpayment. For more information, get Form 8379, Injured Spouse Allocation. taxmap/pubs/p971-000.htm#TXMP04439f8e
We welcome your comments about this publication and your suggestions for future editions.
You can write to us at the following address:
Internal Revenue Service
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The IRS can help you with your request for innocent spouse relief. If you are working with an IRS employee, you can ask that employee, or you can call 866-897-4270.
You may want to see:
Forms (and instructions) 8857: Request for Innocent Spouse Relieftaxmap/pubs/p971-000.htm#TXMP23cd945f
File Form 8857 to ask the IRS for the types of relief discussed in this publication. If you are requesting relief for more than three tax years, you must file an additional Form 8857.
The IRS will review your Form 8857 and let you know if you qualify.
A completed Form 8857 is shown later.taxmap/pubs/p971-000.htm#TXMP2f3ad35e
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.
- The IRS is examining your tax return and proposing to increase your tax liability.
- The IRS sends you a notice.
You must file Form 8857 no later than two years after the date on which the IRS first attempted to collect the tax from you after July 22, 1998. (But see the Caution below for an exception.) For this reason, do not delay filing because you do not have all the documentation.
Collection activities that may start the 2-year period are:
- 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.
- 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.
- The filing of a suit by the United States against you to collect the joint liability.
- 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.
If you are requesting relief based on community property laws, a different filing deadline applies. For details, see Community Property Laws, later.
An executor (including any other duly appointed representative) may pursue a Form 8857 filed during the decedent's lifetime. An executor (including any other duly appointed representative) may also file Form 8857 as long as the decedent satisfied the eligibility requirements while alive. For purposes of separation of liability relief (discussed later), the decedent's marital status is determined on the earlier of the date relief was requested or the date of death.taxmap/pubs/p971-000.htm#TXMP458d2bea
You are not entitled to innocent spouse relief for any tax year to which the following situations apply.
- 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.
- 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.
- You entered into an offer in compromise with the IRS.
- You entered into a closing agreement with the IRS that disposed of the same liability for which you want to seek relief.
You may be entitled to relief, discussed in (4) earlier, if you entered into a closing agreement for both partnership items and nonpartnership items, while you were a party to a pending TEFRA partnership proceeding. (TEFRA is an acronym that refers to the "Tax Equity and Fiscal Responsibility Act of 1982" that prescribed the tax treatment of partnership items.) You are not entitled to relief for the nonpartnership items, but you will be entitled to relief for the partnership items (if you otherwise qualify).taxmap/pubs/p971-000.htm#TXMP3efb032c
The innocent spouse relief provisions do not affect tax liabilities that arise under federal or state transferee liability or property laws. Therefore, even if you are relieved of the tax liability under the innocent spouse relief provisions, you may remain liable for the unpaid tax, interest, and penalties to the extent provided by these laws.taxmap/pubs/p971-000.htm#TXMP40f1ace1
Herb and Wanda timely filed their 2004 joint income tax return on April 15, 2005. Herb died in March 2006, and the executor of Herb's will transferred all of the estate's assets to Wanda. In February 2007, the IRS assessed a deficiency for the 2004 return. The items causing the deficiency belong to Herb. Wanda is relieved of the deficiency under the innocent spouse relief provisions, and Herb's estate remains solely liable for it. However, the IRS may collect the deficiency from Wanda to the extent permitted under federal or state transferee liability or property laws.taxmap/pubs/p971-000.htm#TXMP2b42cd4d
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.
If you petition the Tax Court (explained below), your spouse or former spouse may see your personal information.
After you file Form 8857, you may be able to petition (ask) the United States Tax Court to review your request for relief in the following two situations.
- The IRS sends you a final determination letter regarding your request for relief.
- You do not receive a final determination letter from the IRS within six months from the date you filed Form 8857.
If you seek equitable relief for an underpaid tax, you will be able to get a Tax Court review of your request only if the tax arose or remained unpaid on or after December 20, 2006.
The United States Tax Court is an independent judicial body and is not part of the IRS.
You must file a petition with the United States Tax Court in order for it to review your request for relief. You must file the petition no later than the 90th day after the date the IRS mails its final determination notice to you. If you do not file a petition, or you file it late, the Tax Court cannot review your request for relief.
You can get a copy of the rules for filing a petition by writing to the Tax Court at the following address. United States Tax Court
400 Second Street, NW
Washington, DC 20217
Or you can visit the Tax Court's website at www.ustaxcourt.gov