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taxmap/pubs/p971-000.htm#en_us_publink100098594
Publication 971

Innocent Spouse Relief

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What's New(p1)


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Expanded filing deadline for equitable relief.(p1)
The period of time in which you may request equitable relief has been expanded. See How To Request Relief later.
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More information.(p1)
For more information about the latest developments on Publication 971, go to www.irs.gov/pub971.

taxmap/pubs/p971-000.htm#TXMP703e2350Introduction

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.
  1. Innocent spouse relief.
  2. Separation of liability relief.
  3. 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 IRS.gov by entering "Innocent Spouse" in the search box.
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What this publication does not cover.(p2)

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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, state unemployment compensation debts, 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, see Form 8379, Injured Spouse Allocation.
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Comments and suggestions.(p2)

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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
Individual Forms and Publications Branch
SE:W:CAR:MP:T:I
1111 Constitution Ave. NW, IR-6526
Washington, DC 20224


We respond to many letters by telephone. Therefore, it would be helpful if you would include your daytime phone number, including the area code, in your correspondence.
You can email us at taxforms@irs.gov. Please put "Publications Comment" on the subject line. You can also send us comments from www.irs.gov/formspubs/, select "Comment on Tax Forms and Publications" under "Information about."
Although we cannot respond individually to each email, we do appreciate your feedback and will consider your comments as we revise our tax products.
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Ordering forms and publications.(p2)
Visit www.irs.gov/formspubs to download forms and publications, call 1-800-829-3676, or write to the address below and receive a response within 10 days after your request is received.


Internal Revenue Service
1201 N. Mitsubishi Motorway
Bloomington, IL 61705-6613


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Questions about innocent spouse relief.(p2)
Tax Tip
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.

taxmap/pubs/p971-000.htm#TXMP603501b9

Useful items

You may want to see:


Publications
 504 Divorced or Separated Individuals
 555 Community Property
 556 Examination of Returns, Appeal Rights, and Claims for Refund
 594 The IRS Collection Process
Forms (and Instructions)
 8857: Request for Innocent Spouse Relief
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How To Request Relief(p2)

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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.
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When to file Form 8857.(p2)

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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.
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 that occurs after July 22, 1998. (But see the exceptions below for different filing deadlines that apply.) 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:
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Exception for equitable relief.(p3)

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On July 25, 2011, the IRS issued Notice 2011-70 (available at www.irs.gov/irb/2011-32_IRB/ar11.html) expanding the amount of time to request equitable relief. The amount of time to request equitable relief depends on whether you are seeking relief from a balance due, seeking a credit or refund, or both:
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Exception for relief based on community property laws.(p3)

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If you are requesting relief based on community property laws, a different filing deadline applies. See Relief from liability arising from community property law discussed later under Community Property Laws.
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Form 8857 filed by or on behalf of a decedent.(p3)

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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.
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Situations in which you are not entitled to relief.(p3)

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You are not entitled to innocent spouse relief for any tax year to which the following situations apply.
  1. 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.
  2. 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.
  3. You entered into an offer in compromise with the IRS.
  4. You entered into a closing agreement with the IRS that disposed of the same liability for which you want to seek relief.
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Exception for agreements relating to TEFRA partnership proceedings.(p3)
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).
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Transferee liability not affected by innocent spouse relief provisions.(p3)

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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.
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Example.(p3)

Herb and Wanda timely filed their 2008 joint income tax return on April 15, 2009. Herb died in March 2010, and the executor of Herb's will transferred all of the estate's assets to Wanda. In August 2010, the IRS assessed a deficiency for the 2008 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.
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The IRS Must Contact Your Spouse or Former Spouse(p3)

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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.
EIC
If you petition the Tax Court (explained below), your spouse or former spouse may see your personal information.
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Tax Court Review of Request(p4)

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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.
  1. The IRS sends you a final determination letter regarding your request for relief.
  2. You do not receive a final determination letter from the IRS within six months from the date you filed Form 8857.
EIC
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.
Due date
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