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Form 8857 · Section 6015
You signed the return. That does not always mean you owe the tax.
Joint filers are each liable for the entire tax, including tax on income the other spouse hid. Congress created relief for the spouse who did not know and did not benefit. In Texas, community property law complicates who owes what even when the returns were separate.
Spouses who file a joint return are jointly and severally liable for all tax, penalties, and interest on it, and the IRS is not bound by a divorce decree that assigns the debt to one of them. Section 6015 of the Internal Revenue Code offers three kinds of relief, all requested on Form 8857: innocent spouse relief, separation of liability relief, and equitable relief. The IRS says the request generally must be made within two years of receiving an IRS notice of an audit or of taxes due because of an error on the return, and the IRS is required to notify the other spouse and allow them to participate.
The three kinds of relief
- Innocent spouse relief. For additional tax the IRS assesses because of erroneous items of the other spouse, such as unreported income or false deductions. You must show that when you signed you did not know, and had no reason to know, of the understatement, and that holding you liable would be unfair.
- Separation of liability. The understated tax is divided between the two of you according to whose items caused it. It is available if you are divorced, legally separated, widowed, or have lived apart for the past twelve months. Actual knowledge of the item defeats it.
- Equitable relief. The fallback when the others do not apply, and the only form of relief for tax that was correctly reported on the return and simply never paid. The IRS weighs factors including marital status, economic hardship, knowledge, abuse or financial control, legal obligations under a divorce decree, and your own compliance since.
You do not choose one. Form 8857 asks for the facts and the IRS considers every type.
The deadline
For innocent spouse relief and separation of liability, the request must be filed within two years after the IRS first takes collection activity against you, such as applying your refund to the joint debt or sending a levy notice. Equitable relief has a longer window: generally as long as the IRS can still collect the tax, or within the refund period if you are seeking money back. Waiting rarely helps, because the facts that matter get older.
The Texas complication
Texas is a community property state. When spouses file separate returns, each must generally report half of the community income, including income the other spouse earned. A spouse who never saw that income can be assessed tax on it. Section 66(c) provides separate relief when you did not know of the income and it would be unfair to tax you on it, and an equitable version when you cannot meet that test. It is requested on the same Form 8857.
Community property also affects collection. The IRS may be able to reach community assets, including part of a new spouse's income, for one spouse's premarital tax debt. That question comes up often in second marriages.
If the IRS says no
A preliminary determination can be appealed to the Independent Office of Appeals within 30 days. After a final determination, or if the IRS has not ruled within six months, you can petition the U.S. Tax Court, and the deadline is 90 days from the final determination. The court reviews the claim independently, and the other spouse can intervene.
What happens if you do nothing
The IRS collects the joint debt from whoever is easiest to collect from, which is usually the spouse with the steady paycheck and the filed returns. Your refunds are taken each year, a lien attaches to property you acquire, and your wages can be levied, all for income you may never have seen.
When a lawyer matters
These cases turn on credibility and on how the marriage's finances are presented: who handled the money, what you saw, what you signed, and what you gained. The form is signed under penalty of perjury and the other spouse gets to respond to it. When a divorce is pending, the request should be coordinated with the family case, because statements in one are used in the other.
Official sources
The rules described on this page come from these primary sources. Check them, or the notice you received, for current figures and dates.
When to call
Ask about relief if:
- The IRS is collecting a joint tax debt from you that came from your spouse's or ex-spouse's income or business.
- Your refund was taken to pay a joint balance from a prior marriage.
- Your divorce decree says your ex-spouse must pay the tax, and the IRS is pursuing you anyway.
- You signed returns under pressure, or without being allowed to review them.
- You filed separately in Texas and were assessed tax on income your spouse earned.
- The IRS is reaching your income for your new spouse's old tax debt.
Common questions
Direct answers.
What is innocent spouse relief?
It is relief from joint and several liability on a joint return when the additional tax comes from your spouse's or former spouse's erroneous items, you did not know and had no reason to know about them when you signed, and it would be unfair to hold you liable.
How do I apply for innocent spouse relief?
File Form 8857, Request for Innocent Spouse Relief. One form covers all three types of relief and relief from community property income. The IRS will contact your spouse or former spouse to ask whether they want to participate.
Is there a deadline to request innocent spouse relief?
Yes. Innocent spouse relief and separation of liability must generally be requested within two years after the IRS first begins collection activity against you. Equitable relief can generally be requested for as long as the IRS can collect the tax, or within the period for claiming a refund.
My divorce decree says my ex must pay the taxes. Why is the IRS coming after me?
The IRS is not a party to your divorce and is not bound by the decree. Both spouses remain liable to the IRS on a joint return. The decree is, however, a factor the IRS considers in deciding equitable relief, and it may give you a claim against your former spouse.
Can I get relief for tax that was reported but never paid?
Only through equitable relief. Innocent spouse relief and separation of liability apply to understated tax. For an unpaid balance shown on the return, the IRS considers factors such as whether you reasonably believed your spouse would pay, economic hardship, and abuse.
How does Texas community property law affect my taxes?
If you file separately, each spouse generally must report half of all community income. Internal Revenue Code section 66(c) provides relief when you did not know of community income earned by your spouse and it would be inequitable to include it in your income.
Related problems
IRS notices rarely arrive alone.
IRS Installment Agreements
A payment plan is the most common way out of IRS collection. The size of the balance decides how much the IRS asks about your finances, and the terms decide whether you can keep it.
Read more →Currently Not Collectible
If paying the IRS would leave you unable to cover rent, food, and medicine, the IRS can stop collecting. The debt stays, and so does the clock that eventually ends it.
Read more →CP2000 Notice
The IRS says the income on your return does not match what employers, banks, or brokers reported. It is a proposal, not a bill, and it has a response date.
Read more →Final Notice of Intent to Levy
CP504, LT11, and Letter 1058 look alike and mean different things. One of them starts a 30-day clock that protects your bank account and your right to go to court.
Read more →Notice of Deficiency (90-Day Letter)
The IRS has formally determined that you owe more tax. You have 90 days to take the dispute to the U.S. Tax Court without paying first. The IRS cannot extend that date.
Read more →Bank Levy & Wage Garnishment Release
A frozen bank account is held for 21 days before the money goes to the IRS. A wage levy repeats every payday until it is released. Both can be released.
Read more →Next step
What you knew, and when, is the case.
Tell Patrick how the returns were prepared and what the IRS is doing now. The conversation is confidential.