Publication 971 (Rev. April 2008) - Innocent Spouse Relief (Page 20 of 23) in pdf

•

The IRS determines that it is un-

File Form 8857, Request for Innocent

you. The 10-year period will be in-

Spouse Relief, to ask the IRS for relief.

creased by the amount of time your

fair to hold you liable for the un-

You must file an additional Form 8857

request for relief was pending plus 60

derstated or underpaid tax taking

if you are requesting relief for more

days.

into account all the facts and cir-

than three years.

cumstances.

What is “injured spouse relief”?

•

You and your spouse (or former

When should I file Form 8857?

spouse) did not transfer assets

Injured spouse relief is different from

to one another as a part of a

If you are requesting innocent spouse

innocent spouse relief. When a joint

relief, separation of liability relief, or

return is filed and the refund is used to

fraudulent scheme.

equitable relief, file Form 8857 no later

pay one spouse’s past-due federal tax,

•

Your spouse (or former spouse)

than two years after the date on which

state income tax, child support,

did not transfer assets to you for

the IRS first began collection activities

spousal support, or federal non-tax

the main purpose of avoiding tax

against you after July 22, 1998. If you

debt, such as a student loan, the other

or the payment of tax.

are requesting relief from liability aris-

spouse may be considered an injured

•

ing from community property law, see

spouse. The injured spouse can get

You did not file or fail to file your

How and When To Request Relief

back his or her share of the joint over-

return with the intent to commit

under Community Property Laws, ear-

payment using Form 8379, Injured

fraud.

lier, for when to file Form 8857.

Spouse Allocation.

•

You are considered an injured

The income tax liability for which

Where should I file Form 8857?

spouse if:

you seek relief is attributable to

your spouse (or former spouse)

1. You are not legally obligated to

Use the address shown in the instruc-

with whom you filed the joint re-

pay the past-due amount, and

tions for Form 8857.

turn. For exceptions to this con-

2. You meet any of the following

dition, see item (8) under

I am currently undergoing an exam-

conditions:

Conditions for Getting Equitable

ination of my return. How do I re-

Relief, earlier.

quest innocent spouse relief?

a. You made and reported tax

payments (such as federal in-

Note. Unlike innocent spouse relief or

File Form 8857 at the address shown

come tax withholding or esti-

separation of liability relief, if you qual-

in the instructions for Form 8857. Do

mated tax payments).

ify for equitable relief, you can also get

not file it with the employee assigned

relief from an underpaid tax. (An un-

b. You had earned income (such

to examine your return.

derpaid tax is tax that is properly

as wages, salaries, or

shown on the return, but has not been

self-employment income) and

What if the IRS has given me notice

claimed the earned income

paid.)

that it will levy my account for the

credit or the additional child

tax liability and I decide to request

tax credit.

How do state community property

relief?

laws affect my ability to qualify for

c. You claimed a refundable tax

relief?

credit, such as the health cov-

Generally, the IRS has 10 years to

erage tax credit or the refund-

collect an amount you owe. This is the

able credit for prior year

collection statute of limitations. By law,

Community property states are Ari-

the IRS is not allowed to collect from

minimum tax.

zona, California, Idaho, Louisiana, Ne-

you after the 10-year period ends.

v a d a ,

N e w

M e x i c o ,

T e x a s ,

Note. If your residence was in a com-

Washington, and Wisconsin. Gener-

If you request relief for any tax year,

munity property state at any time dur-

ally, community property laws require

the IRS cannot collect from you for that

ing the year, you may file Form 8379

year while your request is pending. But

you to allocate community income and

even if only item (1) above applies.

interest and penalties continue to ac-

expenses equally between both

crue. Your request is generally consid-

spouses. However, community prop-

ered pending from the date the IRS

erty laws are not taken into account in

receives your Form 8857 until the date

determining whether an item belongs

your request is resolved. This includes

to you or to your spouse (or former

the time the Tax Court is considering

spouse) for purposes of requesting

your request.

any relief from liability.

After your case is resolved, the IRS

■

How do I request relief?

can begin or resume collecting from

Page 20

Publication 971 (April 2008)

Publication 971 (Rev. April 2008) - Innocent Spouse Relief Page 20

Related Articles

Related forms

Related Categories