This section answers questions commonly asked by taxpayers about
innocent spouse relief.
What is joint and several liability?
Many married taxpayers choose to file a joint tax return because of
certain benefits this filing status allows. Both taxpayers are jointly
and individually responsible for the tax and any interest or penalty
due on the joint return even if they later divorce. This is true even
if a divorce decree states that a former spouse will be responsible
for any amounts due on previously filed joint returns. One spouse may
be held responsible for all the tax due.
How can I get relief from joint and several liability?
Relief now falls into three categories: "innocent spouse relief,"
"separation of liability," and "equitable relief." Each of
these types of relief have different requirements. They are explained
What are the rules for innocent spouse relief?
To qualify for innocent spouse relief, you must meet all
of the following conditions.
- You must have filed a joint return which has an
understatement of tax.
- The understatement of tax must be due to erroneous items of
your spouse (or former spouse).
- You must establish that at the time you signed the joint
return, you did not know, and had no reason to know, that there was an
understatement of tax.
- Taking into account all of the facts and circumstances, it
would be unfair to hold you liable for the understatement of
- You must request relief within 2 years after the date on
which the IRS first began collection activity against you after July
What are "erroneous items"?
Erroneous items are any deductions, credits, or bases that are
incorrectly stated on the return, and any income that is not reported
on the return.
What is an "understatement of tax"?
An understatement of tax is generally the difference between the
total amount of tax that should have been shown on your return and the
amount of tax that was actually shown on your return. For example, you
reported total tax on your 1998 return of $2,500. IRS determined in an
audit of your 1998 return that the total tax should be $3,000. You
have a $500 understatement of tax.
Will I qualify for innocent spouse relief in any situation where there is an understatement of tax?
No. There are many situations in which you may owe tax that is
related to your spouse, but not be eligible for innocent spouse
relief. For example, you and your spouse file a joint return on which
you report $10,000 of income and deductions, but you knew that your
spouse was not reporting $5,000 of dividends. You are not
eligible for innocent spouse relief because you have knowledge
of the understatement.
What are the rules for separation of liability?
Under this type of relief, you divide (separate) the understatement
of tax (plus interest and penalties) on your joint return between you
and your spouse. The understatement of tax allocated to you is
generally the amount you are responsible for. To qualify for
separation of liability, you must have filed a joint return and meet
either of the following requirements at the time you file
- You are no longer married to, or are legally separated from,
the spouse with whom you filed the joint return for which you are
requesting relief. (Under this rule, you are no longer married if you
- You were not a member of the same household as the spouse
with whom you filed the joint return at any time during the 12-month
period ending on the date you file Form 8857.
Why would a request for separation of liability be denied?
Even if you meet the requirements listed earlier, a request for
separation of liability will not be granted in the following
- The IRS proves that you and your spouse transferred assets
as part of a fraudulent scheme.
- The IRS proves that at the time you signed your joint
return, you had actual knowledge of any items giving rise to the
deficiency that are allocated to your spouse.
- Your spouse (or former spouse) transferred property to you
to avoid tax or the payment of tax.
What are the rules for equitable relief?
Equitable relief is only available if you meet all of
the following conditions.
- You do not qualify for innocent spouse relief or separation
- The IRS determines that it is unfair to hold you liable for
the understatement of tax taking into account all the facts and
- You and your spouse did not transfer assets to one another
as a part of a fraudulent scheme.
- Your spouse did not transfer assets to you for the main
purpose of avoiding tax or the payment of tax.
- You did not file your return with the intent to commit
- You did not pay the tax.
Note. Unlike innocent spouse relief or separation of
liability, if you qualify for equitable relief, you can get relief
from an understatement of tax or an underpayment of tax. (An
underpayment of tax is an amount properly shown on the return, but not
How do state community property laws affect my ability to
qualify for relief?
Community property states are Arizona, California, Idaho,
Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
Generally, community property laws require you to allocate community
income and expenses equally between both spouses. However, community
property laws are not taken into account in determining whether an
item belongs to you or to your spouse (or former spouse) for purposes
of requesting any relief from liability.
How do I request relief?
File Form 8857, Request for Innocent Spouse Relief, to
ask the IRS for relief. You only need to file one Form 8857 even if
you are requesting relief for more than one year.
If I am denied innocent spouse relief, must I reapply if I
believe I might qualify under one of the other two provisions?
No. The IRS automatically will consider whether any of the other
provisions would apply.
I only requested equitable relief but the IRS did not grant it. Must I reapply if I believe I might qualify under one of the other two
Yes. You must affirmatively choose innocent spouse relief or
separation of liability in order for the IRS to determine whether or
not you qualify for those types of relief.
I applied for innocent spouse relief before the law changed
(July 22, 1998). Do I need to reapply?
No. The Service will consider your request under the new law as
long as the liability was unpaid as of July 22, 1998. However, if you
filed a claim prior to July 22, 1998, and you have not heard from the
IRS, contact the IRS office where you sent your claim.
When should I file Form 8857?
If you are requesting innocent spouse relief, separation of
liability, or equitable relief, file Form 8857 no later than 2 years
after the date on which the IRS first began collection activities
against you after July 22, 1998.
Where should I file Form 8857?
Follow the instructions on Form 8857.
I am currently undergoing an examination of my return. How do I request innocent spouse relief?
File Form 8857 with the employee assigned to examine your return.
What if the IRS has given me notice that it will levy my account for the tax liability and I decide to request relief?
All collection activity is suspended from the date the request is
received by the Service until the final determination is made.
What is "injured spouse relief"?
Injured spouse relief is different from innocent spouse relief.
When a joint return is filed and the refund is used to pay one
spouse's past-due child and/or spousal support, a past-due federal
debt, or past-due state income tax, the other spouse may be considered
an injured spouse. The injured spouse can claim his or her share of
the refund using Form 8379, Injured Spouse Claim and Allocation.
To be considered an injured spouse, you must have:
- Filed a joint return,
- Received income (such as wages, interest, etc.),
- Made tax payments (such as withholding or estimated tax
- Reported the income and tax payments on the joint return,
- An overpayment, all or part of which was applied to the
past-due amount of the other spouse.