Publication 971 - Innocent Spouse Relief - Internal Revenue Service (Page 20 of 24) in pdf

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The IRS determines that it is un-

How do I request relief?

receives your Form 8857 until the date

fair to hold you liable for the un-

your request is resolved. This includes

derstated or underpaid tax taking

File Form 8857, Request for Innocent

the time the Tax Court is considering

into account all the facts and cir-

Spouse Relief, to ask the IRS for relief.

your request.

cumstances.

You must file an additional Form 8857

After your case is resolved, the IRS

if you are requesting relief for more

•

can begin or resume collecting from

You and your spouse (or former

than three years.

you. The 10-year period will be in-

spouse) did not transfer assets

creased by the amount of time your

to one another as a part of a

When should I file Form 8857?

request for relief was pending plus 60

fraudulent scheme.

days. See Publication 594 for more

•

Your spouse (or former spouse)

If you are requesting innocent spouse

information.

did not transfer property to you

relief or separation of liability relief, file

for the main purpose of avoiding

Form 8857 no later than two years

What is “injured spouse relief”?

tax or the payment of tax.

after the date on which the IRS first

•

began collection activities against you

You did not file or fail to file your

Injured spouse relief is different from

after July 22, 1998.

return with the intent to commit

innocent spouse relief. When a joint

If you are requesting equitable re-

fraud.

return is filed and the refund is used to

lief, see

Exception for equitable relief.

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pay one spouse’s past-due federal tax,

The income tax liability for which

under How To Request Relief, earlier,

state income tax, state unemployment

you seek relief is attributable to

for when to file Form 8857.

compensation debts, child support,

your spouse (or former spouse)

If you are requesting relief from lia-

spousal support, or federal non-tax

with whom you filed the joint re-

bility arising from community property

debt, such as a student loan, the other

turn. For exceptions to this con-

law, see

How and When To Request

dition, see item (8) under

spouse may be considered an injured

Relief

under Community Property

Conditions for Getting Equitable

spouse. The injured spouse can get

Laws, earlier, for when to file Form

Relief, earlier.

back his or her share of the joint over-

8857.

payment using

Form 8379, Injured

•

You timely file Form 8857 as ex-

Spouse

Allocation.

plained earlier in

Exception for

Where should I file Form 8857?

You are considered an injured

equitable relief

under How To

spouse if:

Request Relief.

Use the address or fax number shown

in the Instructions for Form 8857.

Note. Unlike innocent spouse relief or

1. You are not legally obligated to

separation of liability relief, if you qual-

pay the past-due amount, and

I am currently undergoing an exam-

ify for equitable relief, you can also get

2. You meet any of the following

ination of my return. How do I re-

relief from an underpaid tax. (An un-

conditions:

quest innocent spouse relief?

derpaid tax is tax that is properly

shown on the return, but has not been

a. You made and reported tax

File Form 8857 at the address or send

paid.)

payments (such as federal in-

it to the fax number shown in the In-

come tax withholding or esti-

How do state community property

structions for Form 8857. Do not file it

mated tax payments).

laws affect my ability to qualify for

with the employee assigned to ex-

relief?

amine your return.

b. You had earned income (such

as wages, salaries, or

What if the IRS has given me notice

self-employment income) and

Community property states are Ari-

that it will levy my account for the

claimed the earned income

zona, California, Idaho, Louisiana, Ne-

tax liability and I decide to request

credit or the additional child

v a d a ,

N e w

M e x i c o ,

T e x a s ,

relief?

tax credit.

Washington, and Wisconsin. Gener-

ally, community property laws require

c. You claimed a refundable tax

Generally, the IRS has 10 years to

you to allocate community income and

credit, such as the health cov-

collect an amount you owe. This is the

expenses equally between both

erage tax credit or the refund-

collection statute of limitations. By law,

spouses. However, community prop-

able credit for prior year

the IRS is not allowed to collect from

erty laws are not taken into account in

minimum tax.

you after the 10-year period ends.

determining whether an item belongs

If you request relief for any tax year,

to you or to your spouse (or former

Note. If your residence was in a com-

the IRS cannot collect from you for that

spouse) for purposes of requesting

munity property state at any time dur-

year while your request is pending. But

any relief from liability.

ing the year, you may file Form 8379

interest and penalties continue to ac-

even if only item (1) above applies.

crue. Your request is generally consid-

ered pending from the date the IRS

Page 20

Publication 971 (September 2011)

Publication 971 - Innocent Spouse Relief - Internal Revenue Service Page 20

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