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Rev. date: 08/2006


Innocent Spouse Relief (And Separation of Liability and Equitable Relief)

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Tele-Tax Topic 205
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Many married taxpayers choose to file a joint tax return because of certain benefits this filing status allows. Both taxpayers are jointly and severally liable for the tax and any additions to tax, interest, or penalties that arise as a result of the joint return even if they later divorce. Joint and several liability means that each taxpayer is legally responsible for the entire liability. Thus, both spouses are generally held responsible for all the tax due even if one spouse earned all the income or claimed improper deductions or credits. This is true even if a divorce decree states that a former spouse will be responsible for any amounts due on previously filed joint returns. In some cases, however, a spouse can get relief from joint and several liability.
There are three types of relief from joint and several liability for spouses who filed joint returns:
  1. Innocent Spouse Relief provides you relief from additional tax you owe if your spouse or former spouse failed to report income, reported income improperly or claimed improper deductions or credits.
  2. Separation of Liability Relief provides for the allocation of additional tax owed between you and your spouse or former spouse because an item was not reported properly on a joint return. The tax allocated to you is the amount for which you are responsible.
  3. Equitable Relief may apply when you do not qualify for innocent spouse relief or separation of liability relief for something not reported properly on a joint return. You may also qualify for equitable relief if the correct amount of tax was reported on your joint return but the tax remains unpaid.
You must request relief no later than 2 years after the date the IRS first attempted to collect the tax from you, regardless of the type of relief you are seeking. Not all IRS attempts to collect the tax from you will trigger the two year period for filing a request for relief. Collection activities that may start the two year period are: (1) The IRS issues a section 6330 notice to you. A section 6330 notice is a notice that tells you that the IRS intends to levy and that you have a right to a collection due process hearing; (2) The IRS applies your income tax refund against an amount you owed on a joint return for another year for which you seek relief and the IRS informed you about your right to file a Form 8857; (3) The filing of a suit by the United States against you for the collection of the joint tax liability; and (4) The filing of a claim by the IRS in a court proceeding in which you were a party or the filing of a claim that involves your property.
You must meet all of the following conditions to qualify for "innocent spouse relief":
  1. You filed a joint return, which has an understatement of tax, directly related to your spouse's erroneous items. Any income omitted from the joint return is an erroneous item. Deductions, credits, and property bases are erroneous items if they are incorrectly reported on the joint return.
  2. You establish that at the time you signed the joint return you did not know, and had no reason to know, that there was an understatement of tax.
  3. Taking into account all the facts and circumstances, it would be unfair to hold you liable for the understatement of tax.
To qualify for "separation of liability relief" you must have filed a joint return and must meet one of the following requirements at the time you request relief:
  1. You are divorced or legally separated from the spouse with whom you filed the joint return for which you are requesting relief
  2. You are widowed, or
  3. You have not been a member of the same household as the spouse with whom you filed the joint return at any time during the 12-month period ending on the date you file Form 8857, Request for Innocent Spouse Relief.
If, at the time you signed the joint return, you had actual knowledge of the item that gave rise to the understatement of tax, you may not qualify for separation of liability relief.
You may qualify for "equitable relief" if you do not qualify for innocent spouse relief or separation of liability relief. Equitable relief is available for additional tax owed because of a reporting error (an understatement) or you properly reported the tax on your return, but you did not pay it (an underpayment). To qualify for equitable relief you must establish, under all the facts and circumstances, that it would be unfair to hold you liable for the understatement or underpayment of tax. In addition, you must meet other requirements listed in Publication 971, Innocent Spouse Relief.
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, must be filed in order to request innocent spouse relief, separation of liability relief, or equitable relief. You may also refer to Publication 971, Innocent Spouse Relief, for more information. If you request relief from joint liability, the IRS is required to notify the spouse with whom you filed the joint return of your request and allow him or her to provide information for consideration regarding your claim. To learn more about innocent spouse relief, you can use the Innocent Spouse Tax Relief Eligibility Explorer at www.irs.gov. Click on "Individuals," "Tax Information for Innocent Spouses," and "Explore if you are an Eligible Innocent Spouse."
If you lived in a community property state and filed as "married filing separate" rather than "married filing jointly", you might still qualify for relief. Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Refer to Publication 971 for more details.
Relief from joint and several liability should not be confused with an injured spouse claim. You are an "injured spouse" if you file a joint return and all or part of your share of the refund was, or will be, applied against the separate past-due Federal tax, state tax, child support, or Federal non-tax debt (such as a student loan) of your spouse with whom you filed the joint return. If you are an injured spouse, you may be entitled to recoup your share of the refund. For more information, obtain Form 8379, Injured Spouse Allocation, or refer to Tax Topic 203, Failure to Pay Child Support, Federal Non-Tax and State Income Tax Obligations.