Publication 971 - Innocent Spouse Relief - Internal Revenue Service (Page 19 of 24) in pdf

Questions & Answers

IRS first began collection activity

joint return for which you are re-

This section answers questions

against you after July 22, 1998.

questing relief. (Under this rule,

commonly asked by taxpayers about

you are no longer married if you

innocent spouse relief.

are widowed.)

What are “erroneous items”?

•

What is joint and several liability?

You were not a member of the

same household as the spouse

Erroneous items are any deduc-

When you file a joint income tax return,

with whom you filed the joint re-

tions, credits, or bases that are incor-

the law makes both you and your

turn at any time during the

rectly stated on the return, and any

spouse responsible for the entire tax

12-month period ending on the

income that is not properly reported on

liability. This is called joint and several

date you file Form 8857.

the return.

liability. Joint and several liability ap-

plies not only to the tax liability you

In addition to the above require-

What is an “understated tax”?

show on the return but also to any

ments, you must file a Form 8857

additional tax liability the IRS deter-

within 2 years after the date on which

You have an understated tax if the IRS

mines to be due, even if the additional

the IRS first began collection activity

determined that your total tax should

tax is due to the income, deductions,

against you after July 22, 1998.

be more than the amount actually

or credits of your spouse or former

shown on your return. For example,

spouse. You remain jointly and sever-

Why would a request for separation

you reported total tax on your 2008

ally liable for taxes, and the IRS still

of liability relief be denied?

return of $2,500. IRS determined in an

can collect from you, even if you later

audit of your 2008 return that the total

divorce and the divorce decree states

Even if you meet the requirements

tax should be $3,000. You have a

that your former spouse will be solely

listed earlier, a request for separation

$500 understated tax.

responsible for the tax.

of liability relief will not be granted in

the following situations.

Will I qualify for innocent spouse

How can I get relief from joint and

•

relief in any situation where there is

The IRS proves that you and

several liability?

an understated tax?

your spouse (or former spouse)

transferred assets to one another

There are three types of relief for filers

No. There are many situations in

as part of a fraudulent scheme.

of joint returns: “innocent spouse re-

which you may owe tax that is related

•

lief,” “separation of liability relief,” and

The IRS proves that at the time

to your spouse (or former spouse), but

“equitable relief.” Each type has differ-

you signed your joint return, you

not be eligible for innocent spouse re-

ent requirements. They are explained

had actual knowledge of any er-

lief. For example, you and your spouse

separately below.

roneous items giving rise to the

file a joint return on which you report

deficiency that are allocable to

$10,000 of income and deductions,

What are the rules for innocent

your spouse (or former spouse).

but you knew that your spouse was not

spouse relief?

•

reporting $5,000 of dividends. You are

Your spouse (or former spouse)

not eligible for innocent spouse relief

transferred property to you to

To qualify for innocent spouse relief,

because you have knowledge of the

avoid tax or the payment of tax.

you must meet all of the following con-

understated tax.

ditions.

•

What are the rules for equitable re-

You must have filed a joint return

What are the rules for separation of

lief?

which has an understated tax.

liability relief?

•

The understated tax must be due

Under this type of relief, you allocate

Equitable relief is only available if

to erroneous items of your

(separate) the understated tax (plus

you meet all of the following condi-

spouse (or former spouse).

interest and penalties) on your joint

tions.

•

You must establish that at the

return between you and your spouse

•

You do not qualify for innocent

time you signed the joint return,

(or former spouse). The understated

spouse relief, separation of liabil-

you did not know, and had no

tax allocated to you is generally the

ity relief, or relief from liability

reason to know, that there was

amount you are responsible for. To

an understated tax.

arising from community property

qualify for separation of liability relief,

law.

•

you must have filed a joint return and

Taking into account all of the

•

meet either of the following require-

You have an understated tax or

facts and circumstances, it would

be unfair to hold you liable for

ments at the time you file Form 8857.

underpaid tax. See Note later.

the understated tax.

•

You are no longer married to, or

You did not pay the tax. How-

•

are legally separated from, the

ever, see Refunds, earlier, for

You must request relief within 2

years after the date on which the

spouse with whom you filed the

exceptions.

Publication 971 (September 2011)

Page 19

Publication 971 - Innocent Spouse Relief - Internal Revenue Service Page 19

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