Form 8857 (Rev. February 2004) -Request For Innocent Spouse Relief Page 2
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Form 8857 (Rev. 2-2004)
Page
General Instructions
Where To File
Purpose of Form
Do not file Form 8857 with your tax return or fax it to the
IRS. Instead, see below.
Use Form 8857 to request relief from liability for tax, plus
related penalties and interest, for which you believe only your
spouse or former spouse should be held liable. Generally,
IF . . .
THEN file Form 8857 with . . .
you must have filed a joint return for the year(s) for which
You are meeting with an
That IRS employee.
you are requesting relief (but see Community Property
IRS employee for an
Laws). The IRS will evaluate your request and tell you if you
examination, examination
qualify.
appeal, or collection
You may be allowed one or more of these three types of
relief:
You received an IRS notice
The IRS employee named in the
of deficiency, and the
notice. Attach a copy of the notice.
● Separation of liability,
90-day period specified in
Do not file Form 8857 with the Tax
● Innocent spouse relief, or
the notice has not expired*
Court.
● Equitable relief.
Neither situation above
Internal Revenue Service
applies to you
Stop 840F, P.O. Box 120053
Statement To Attach
Covington, KY 41012
You must attach a statement to Form 8857 explaining why
*
Before the end of the 90-day period, you should file a petition with the Tax
you qualify for relief. Complete the statement using the best
Court, as explained in the notice. By doing so, you preserve your rights if the
information you have available. Include your name and social
IRS is unable to properly consider your request before the end of the 90-day
security number (SSN) on the statement.
period. Include the information that supports your position, including when and
why you filed Form 8857 with the IRS, in your petition to the Tax Court. The
If you are requesting relief for more than 1 tax year, you
time for filing with the Tax Court is not extended while the IRS is considering
only need to file one Form 8857. However, you must include
your request.
a separate statement for each year. Clearly indicate in the
statement(s) the type(s) of relief you are requesting for each
year. You must provide certain information for each type of
Definitions
relief you are requesting. See the specific instructions for
Understatement of Tax
Parts III, IV, and V for details on the information to include
with your statement(s).
An understatement of tax, or deficiency, is generally the
Generally, the IRS will request additional information from
difference between the total amount of tax that the IRS
you. You can help the processing of your request for relief by
determines should have been shown on the return, and the
completing and attaching Form 12510, Questionnaire for
amount that actually was shown on the return.
Requesting Spouse. To get Form 12510, go to
Example. You and your former spouse filed a joint return
or call 1-800-TAX-FORM (1-800-829-3676).
showing $5,000 of tax, which was fully paid. The IRS later
examines the return and finds $10,000 of income that your
Additional Information
former spouse earned but did not report. With the additional
See Pub. 971, Innocent Spouse Relief. To get Pub. 971, go
income, the total tax becomes $6,500. The understatement
to or call 1-800-TAX-FORM (1-800-829-3676).
of tax is $1,500, for which you and your former spouse are
both liable.
The IRS can help you with your request. If you are working
with an IRS employee, you can ask that employee, or you
Underpayment of Tax
can call 1-800-829-1040.
An underpayment is tax that is properly shown on your return
When To File
but has not been paid.
You should file Form 8857 as soon as you become aware of
Example. You and your former spouse filed a joint return
a tax liability for which you believe only your spouse or
that properly reflects your income and deductions but
former spouse should be held liable. The following are some
showed an unpaid balance due of $5,000. The
of the ways you may become aware of such a liability.
underpayment of tax is $5,000. You gave your former spouse
$2,500 and he or she promised to pay the full $5,000, but
● The IRS is examining your tax return and proposing a
did not. There is still an underpayment of tax of $5,000, for
deficiency.
which you and your former spouse are both liable.
● The IRS sends you a notice.
Note: If you have both an underpayment and understatement
You generally must file Form 8857 no later than 2 years
of tax, you may have to request different types of relief. If you
after the first IRS attempt to collect the tax from you that
have an underpayment of tax, you may only request equitable
occurs after July 22, 1998. Examples of attempts to collect
relief. Complete Parts III and IV to see which type(s) of relief
the tax from you are garnishment of your wages or applying
you can request for the understatement of tax.
your income tax refund to the tax due.
Joint and Several Liability
If you are requesting relief based on community
property laws, a different filing deadline applies.
Generally, joint and several liability applies to all joint returns.
See Relief from liability arising from community
This means that both you and your spouse or former spouse
property law on page 3.
are jointly and individually responsible for any underpayment
of tax plus any understatement of tax that may become due
Note: The time that the IRS will be allowed to collect taxes,
later. This is true even if a divorce decree states that your
interest, and penalties does not include the time that your
former spouse will be responsible for any amounts due on
request for relief is being considered.
previously filed joint returns.
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