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IRS.gov Website
Publication 971
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Questions & Answers

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This section answers questions commonly asked by taxpayers about innocent spouse relief.
What is joint and several liability?
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 the income, deductions, or credits of your spouse or former spouse. You remain jointly and severally liable for 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.
How can I get relief from joint and several liability?
There are three types of relief for filers of joint returns: "innocent spouse relief," "separation of liability relief," and "equitable relief." Each type has different requirements. They are explained separately below.
What are the rules for innocent spouse relief?
To qualify for innocent spouse relief, you must meet all of the following conditions.
  • You must have filed a joint return which has an understated tax.
  • The understated tax must be due to erroneous items of your spouse (or former spouse).
  • You must establish that at the time you signed the joint return, you did not know, and had no reason to know, that there was an understated tax.
  • Taking into account all of the facts and circumstances, it would be unfair to hold you liable for the understated tax.
  • You must request relief within 2 years after the date on which the IRS first began collection activity against you.
What are "erroneous items"?
Erroneous items are any deductions, credits, or bases that are incorrectly stated on the return, and any income that is not properly reported on the return.
What is an "understated tax"?
You have an understated tax if the IRS determined that your total tax should be more than the amount actually shown on your return. For example, you reported total tax on your 2012 return of $2,500. IRS determined in an audit of your 2012 return that the total tax should be $3,000. You have a $500 understated tax.
Will I qualify for innocent spouse relief in any situation where there is an understated tax?
No. There are many situations in which you may owe tax that is related to your spouse (or former spouse), but not be eligible for innocent spouse relief. For example, you and your spouse file a joint return on which you report $10,000 of income and deductions, but you knew that your spouse was not reporting $5,000 of dividends. You are not eligible for innocent spouse relief because you have knowledge of the understated tax.
What are the rules for separation of liability relief?
Under this type of relief, you allocate (separate) the understated tax (plus interest and penalties) on your joint return between you and your spouse (or former spouse). The understated tax allocated to you is generally the amount you are responsible for. To qualify for separation of liability relief, you must have filed a joint return and meet either of the following requirements at the time you file Form 8857.
  • You are no longer married to, or are legally separated from, the spouse with whom you filed the joint return for which you are requesting relief. (Under this rule, you are no longer married if you are widowed.)
  • You were not 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.
In addition to the above requirements, you must file a Form 8857 within 2 years after the date on which the IRS first began collection activity against you.
Why would a request for separation of liability relief be denied?
Even if you meet the requirements listed earlier, a request for separation of liability relief will not be granted in the following situations.
  • The IRS proves that you and your spouse (or former spouse) transferred assets to one another as part of a fraudulent scheme.
  • The IRS proves that at the time you signed your joint return, you had actual knowledge of any erroneous items giving rise to the deficiency that are allocable to your spouse (or former spouse).
  • Your spouse (or former spouse) transferred property to you to avoid tax or the payment of tax.
What are the rules for equitable relief?
Equitable relief is only available if you meet all of the following conditions.
  • You do not qualify for innocent spouse relief, separation of liability relief, or relief from liability for tax attributable to an item of community income.
  • You have an understated tax or unpaid tax. See Note, later.
  • You and your spouse (or former spouse) did not transfer assets to one another as a part of a fraudulent scheme.
  • Your spouse (or former spouse) did not transfer property to you for the main purpose of avoiding tax or the payment of tax.
  • You did not knowingly participate in the filing of a fraudulent joint return.
  • The income tax liability from which you seek relief is attributable (either in full or in part) to an item of your spouse (or former spouse) or an unpaid tax resulting from your spouse's (or former spouse's) income. For exceptions to this condition, see item (7) under Conditions for Getting Equitable Relief, earlier.
  • You timely file Form 8857 as explained earlier in Exception for equitable relief under When To File Form 8857.
  • The IRS determines that it is unfair to hold you liable for the understated or unpaid tax taking into account all the facts and circumstances.
Note. Unlike innocent spouse relief or separation of liability relief, if you qualify for equitable relief, you can also get relief from an unpaid tax. (An unpaid tax is tax that is properly shown on the return, but has not been paid.)
How do state community property laws affect my ability to qualify for relief?
Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Generally, community property laws provide that you and your spouse are both entitled to one-half of your total community income and expenses. However, community property laws are not taken into account in determining whether an item belongs to you or to your spouse (or former spouse) if you request relief from joint and several liability.
How do I request relief?
File Form 8857, Request for Innocent Spouse Relief, to ask the IRS for relief. You must file an additional Form 8857 if you are requesting relief for more than six years.
When should I file Form 8857?
If you are requesting innocent spouse relief or separation of liability relief, file Form 8857 no later than two years after the date on which the IRS first began collection activities against you.
If you are requesting equitable relief, see Exception for equitable relief under When To File Form 8857, earlier, for when to file Form 8857.
If you are requesting relief from liability for tax attributable to an item of community income, see How and When To Request Relief under Community Property Laws, earlier, for when to file Form 8857.
Where should I file Form 8857?
Use one of the addresses or fax number shown in the Instructions for Form 8857.
I am currently undergoing an examination of my return. How do I request innocent spouse relief?
File Form 8857 at one of the addresses or send it to the fax number shown in the Instructions for Form 8857. Do not file it with the employee assigned to examine your return.
What if the IRS has given me notice that it will levy my account for the tax liability and I decide to request relief?
Generally, the IRS has 10 years to collect an amount you owe. This is the collection statute of limitations. By law, the IRS is not allowed to collect from you after the 10-year period ends.
If you request relief for any tax year, the IRS cannot collect from you for that year while your request is pending. But interest and penalties continue to accrue. Your request is generally considered pending from the date the IRS receives your Form 8857 until the date your request is resolved. This includes the time the Tax Court is considering your request.
After your case is resolved, the IRS can begin or resume collecting from you any tax for which you are determined to remain responsible. The 10-year period will be increased by the amount of time your request for relief was pending plus 60 days. See Publication 594 for more information.
What is "injured spouse relief"?
Injured spouse relief is different from innocent spouse relief. When a joint return is filed and the refund is used to pay one spouse's past-due federal tax, state income tax, state unemployment compensation debts, child support, spousal support, or federal non-tax debt, such as a student loan, the other spouse may be considered an injured spouse. The injured spouse can get back his or her share of the joint overpayment using Form 8379, Injured Spouse Allocation.
You are considered an injured spouse if:
  1. You are not legally obligated to pay the past-due amount, and
  2. You meet any of the following conditions:
    1. You made and reported tax payments (such as federal income tax withholding or estimated tax payments).
    2. You had earned income (such as wages, salaries, or self-employment income) and claimed the earned income credit or the additional child tax credit.
    3. You claimed a refundable tax credit, such as the health coverage tax credit or the refundable credit for prior year minimum tax.
Note. If your residence was in a community property state at any time during the year and the state recognizes your marriage, you may file Form 8379 even if only item (1) above applies.
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How To Get Tax Help

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Do you need help with a tax issue or preparing your tax return, or do you need a free publication or form?
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Preparing and filing your tax return.

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Find free options to prepare and file your return on IRS.gov or in your local community if you qualify.
The Volunteer Income Tax Assistance (VITA) program offers free tax help to people who generally make $53,000 or less, persons with disabilities, the elderly, and limited-English-speaking taxpayers who need help preparing their own tax returns. The Tax Counseling for the Elderly (TCE) program offers free tax help for all taxpayers, particularly those who are 60 years of age and older. TCE volunteers specialize in answering questions about pensions and retirement-related issues unique to seniors.
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Getting answers to your tax law questions.

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IRS.gov and IRS2Go are ready when you are—24 hours a day, 7 days a week.
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Tax forms and publications.

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You can download or print all of the forms and publications you may need on IRS.gov/formspubs. Otherwise, you can: You should receive your order within 10 business days.
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Where to file your tax return.

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Getting a transcript or copy of a return.

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Using online tools to help prepare your return.

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Go to IRS.gov and click on the Tools bar to use these and other self-service options.
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Understanding identity theft issues.

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Checking on the status of a refund.

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Making a tax payment.

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You can make electronic payments online, by phone, or from a mobile device. Paying electronically is safe and secure. The IRS uses the latest encryption technology and does not store banking information. It’s easy and secure and much quicker than mailing in a check or money order. Go to IRS.gov and click on the Payments tab or the "Pay Your Tax Bill" icon to make a payment using the following options.
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What if I can’t pay now?

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Click on the Payments tab or the "Pay Your Tax Bill" icon on IRS.gov to find more information about these additional options.
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Checking the status of an amended return.

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Go to IRS.gov and click on the Tools tab and then Where’s My Amended Return?
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Understanding an IRS notice or letter.

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Enter "Understanding your notice" in the search box on IRS.gov to find additional information about your IRS notice or letter.
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Visiting the IRS.

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Locate the nearest Taxpayer Assistance Center using the Office Locator tool on IRS.gov. Enter "office locator" in the search box. Or choose the "Contact Us" option on the IRS2Go app and search Local Offices. Before you visit, use the Locator tool to check hours and services available.
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Watching IRS videos.

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The IRS Video portal IRSvideos.gov contains video and audio presentations on topics of interest to individuals, small businesses, and tax professionals. You’ll find video clips of tax topics, archived versions of live panel discussions and Webinars, and audio archives of tax practitioner phone forums.
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Getting tax information in other languages.

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For taxpayers whose native language is not English, we have the following resources available.
  1. Taxpayers can find information on IRS.gov in the following languages.
    1. Spanish.
    2. Chinese.
    3. Vietnamese.
    4. Korean.
    5. Russian.
  2. The IRS Taxpayer Assistance Centers provide over-the-phone interpreter service in over 170 languages, and the service is available free to taxpayers.
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The Taxpayer Advocate Service Is Here To Help You

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What is the Taxpayer Advocate Service?

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The Taxpayer Advocate Service (TAS) is an independent organization within the Internal Revenue Service that helps taxpayers and protects taxpayer rights. Our job is to ensure that every taxpayer is treated fairly and that you know and understand your rights under the Taxpayer Bill of Rights.
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What Can the Taxpayer Advocate Service Do For You?

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We can help you resolve problems that you can’t resolve with the IRS. And our service is free. If you qualify for our assistance, you will be assigned to one advocate who will work with you throughout the process and will do everything possible to resolve your issue. TAS can help you if:
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How Can You Reach Us?

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We have offices in every state, the District of Columbia, and Puerto Rico. Your local advocate’s number is in your local directory and at taxpayeradvocate.irs.gov. You can also call us at 1-877-777-4778.
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How Can You Learn About Your Taxpayer Rights?

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The Taxpayer Bill of Rights describes ten basic rights that all taxpayers have when dealing with the IRS. Our Tax Toolkit at taxpayeradvocate.irs.gov can help you understand what these rights mean to you and how they apply. These are your rights. Know them. Use them.
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How Else Does the Taxpayer Advocate Service Help Taxpayers?

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TAS works to resolve large-scale problems that affect many taxpayers. If you know of one of these broad issues, please report it to us at irs.gov/sams.
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Low Income Taxpayer Clinics

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Low Income Taxpayer Clinics (LITCs) serve individuals whose income is below a certain level and need to resolve tax problems such as audits, appeals, and tax collection disputes. Some clinics can provide information about taxpayer rights and responsibilities in different languages for individuals who speak English as a second language. To find a clinic near you, visit irs.gov/litc or see IRS Publication 4134, Low Income Taxpayer Clinic List.