Request for Innocent Spouse Relief

Major Changes

Changes to the instructions reflect changes we made to the form and
suggestions we received from members of the Innocent Spouse Process
Improvement Team. The suggestions were based on tax law changes made to
IRC section 6015 by Public Law 109-432, comments we received from the
American Bar Association (ABA) and the Taxpayer Advocate Service (TAS), and
the results of focus testing of the form.
• On page 1 under When To File, we added a list of collection-related notices.
ABA
• On page 3, under Tax Court review of request, we revised the text of the
Caution to reflect the changes to the law. P.L. 109-432

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Instructions for Form 8857

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Department of the Treasury
Internal Revenue Service

Instructions for Form 8857
(Rev. June 2007)
Request for Innocent Spouse Relief
(and Separation of Liability and Equitable Relief)
Section references are to the Internal Revenue Code unless
otherwise noted.

General Instructions
What’s New
Form 8857 has been revised to reduce the number of mistakes
made in preparing it (such as requesting relief for the wrong tax
year) and to help us process the form faster.
We recognize that some of these questions involve sensitive
subjects. However, we need this information to evaluate the
circumstances of your case and properly determine whether
you qualify for relief.
Note. In these instructions, the term “your spouse or former
spouse” means the person who was your spouse for the year(s)
you want relief. This is the person whose name you enter on
line 7.

Purpose of Form
When you file a joint income tax return, the law makes both you
and your spouse responsible for the entire tax liability. This is
called joint and several liability. Joint and several liability applies
not only to the tax liability you show on the return but also to
any additional tax liability the IRS determines to be due, even if
the additional tax is due to the income, deductions, or credits of
your spouse or former spouse. You remain jointly and severally
liable for taxes, and the IRS still can collect from you, even if
you later divorce and the divorce decree states that your former
spouse will be solely responsible for the tax.

When To File
You should file Form 8857 as soon as you become aware of a
tax liability for which you believe only your spouse or former
spouse should be held responsible. The following are some of
the ways you may become aware of such a liability.
• The IRS is examining your tax return and proposing to
increase your tax liability.
• The IRS sends you a notice.
However, you must file Form 8857 no later than 2 years after
the first IRS attempt to collect the tax from you that occurs after
July 22, 1998. (But see Caution below for an exception.) For
this reason, do not delay filing because you do not have all the
required documentation.
Collection activities that may start the 2-year period are:

• The IRS offset your income tax refund against an amount you

owed on a joint return for another year and the IRS informed
you about your right to file Form 8857.
• The filing of a claim by the IRS in a court proceeding in which
you were a party or the filing of a claim in a proceeding that
involves your property. This includes the filing of a proof of
claim in a bankruptcy proceeding.
• The filing of a suit by the United States against you to collect
the joint liability.
• The issuance of a section 6330 notice, which notifies you of
the IRS’ intent to levy and your right to a collection due process
(CDP) hearing. The collection-related notices include but are
not limited to Letter 11, Letter 1058, and Letter 3172.

!

CAUTION

If you believe that only your spouse or former spouse should
be held responsible for all or part of the tax, you can request
relief from the tax liability, plus related penalties and interest. To
request relief, you must file Form 8857. The IRS will use the
information you provide on the form and any attachments to
determine if you are eligible for relief. If the IRS needs
additional information, you will be contacted.
Married people who did not file joint returns, but who live in
community property states may also request relief. Community
property states are Arizona, California, Idaho, Louisiana,
Nevada, New Mexico, Texas, Washington, or Wisconsin. See
Community Property Laws later.

Situations in Which You Should Not
File Form 8857
Do not file Form 8857 for any tax year to which the following
situations apply. Do not file the form even if you check “Yes” on
line 4 or 5 for that year.
• In a final decision dated after July 22, 1998, a court
considered whether to grant you relief from joint liability and
decided not to do so.
• In a final decision dated after July 22, 1998, a court did not
consider whether to grant you relief from joint liability, but you
meaningfully participated in the proceeding and could have
asked for relief.
• You entered into an offer in compromise with the IRS.
• You entered into a closing agreement with the IRS that
disposed of the same liability for which you want to seek relief.
However, see Pub. 971 for an exception that applies to TEFRA
partnership proceedings.
• You check “Yes” on line 3. See instructions for line 3 on
page 4.

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If you are requesting relief based on community property
laws, a different filing deadline applies. See Relief from
liability arising from community property law on page 2.

Where To File
Do not file Form 8857 with your tax return or fax it to the IRS.
Instead, see below.
IF . . .

THEN file Form 8857 with . . .

You are communicating with an
IRS employee because of an
examination, examination appeal,
or collection

That IRS employee.

You received an IRS notice of
deficiency, and the 90-day period
specified in the notice has not
expired*

The IRS employee named in the
notice. Attach a copy of the notice.
Do not file Form 8857 with the Tax
Court.

Neither situation above applies to
you

Internal Revenue Service
Stop 840F, P.O. Box 120053
Covington, KY 41012

*Before the end of the 90-day period, you should file a petition with the Tax Court,
as explained in the notice. By doing so, you preserve your rights if the IRS is
unable to properly consider your request before the end of the 90-day 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 time for filing
with the Tax Court is not extended while the IRS is considering your request.

The IRS Must Contact Your Spouse or
Former Spouse
By law, the IRS must contact your spouse or former spouse.
There are no exceptions, even for victims of spousal abuse or
domestic violence.

Cat. No. 24646K

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Instructions for Form 8857

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Equitable Relief

We will inform your spouse or former spouse that you filed
Form 8857 and will allow him or her to participate in the
process. If you are requesting relief from joint and several
liability on a joint return, the IRS must also inform him or her of
its preliminary and final determinations regarding your request
for relief.
However, to protect your privacy, the IRS will not disclose
your personal information (for example, your current name,
address, phone number(s), information about your employer,
your income or assets) or any other information that does not
relate to making a determination about your request for relief
from liability.

!

CAUTION

You may be allowed equitable relief if both of the following
conditions are met.
• You have an understated tax (defined earlier) or underpaid
tax (defined next), and
• Taking into account all the facts and circumstances, the IRS
determines it would be unfair to hold you liable for the
understated or underpaid tax.
Equitable relief is the only type of relief available for an
underpaid tax.
Underpaid tax. An underpaid tax is tax that is properly shown
on your return but has not been paid.

If you petition the Tax Court (explained on page 3), your
spouse or former spouse may see your personal
information.

Example. You and your former spouse filed a joint return
that properly reflects your income and deductions but showed
an unpaid balance due of $5,000. The underpaid tax is $5,000.
You gave your former spouse $2,500 and he or she promised
to pay the full $5,000, but paid nothing. There is still an
underpaid tax of $5,000, for which you and your former spouse
are both liable.
Additional information. For additional information on
equitable relief, see Pub. 971 and Rev. Proc. 2003-61. You can
find Rev. Proc. 2003-61 on page 296 of Internal Revenue
Bulletin 2003-32 at www.irs.gov/pub/irs-irbs/irb03-32.pdf.

Types of Relief
Four types of relief are available. They are:
1. Innocent spouse relief.
2. Separation of liability relief.
3. Equitable relief.
4. Relief from liability arising from community property law.
(See Community Property Laws later).

Innocent Spouse Relief

Community Property Laws

You may be allowed innocent spouse relief only if all of the
following apply.
• You filed a joint return for the year(s) entered on line 1.
• There is an understated tax on the return(s) that is due to
erroneous items (defined below) of the person with whom you
filed the joint return.
• You can show that when you signed the return(s) you did not
know and had no reason to know that the understated tax
existed (or the extent to which the understated tax existed).
• Taking into account all the facts and circumstances, it would
be unfair to hold you liable for the understated tax.
Understated tax. You have an understated tax if the IRS
determined that your total tax should be more than the amount
actually shown on the return.
Example. You and your former spouse filed a joint return
showing $5,000 of tax, which was fully paid. The IRS later
examines the return and finds $10,000 of income that your
former spouse earned but did not report. With the additional
income, the total tax becomes $6,500. The understated tax is
$1,500, for which you and your former spouse are both liable.
Erroneous items. Any income, deduction, credit, or basis is
an erroneous item if it is omitted from or incorrectly reported on
the joint return.
Partial innocent spouse relief. If you knew about any of the
erroneous items, but not the full extent of the item(s), you may
be allowed relief for the part of the understatement you did not
know about.
Additional information. For additional information on
innocent spouse relief, see Pub. 971.

Generally, you must follow community property laws when filing
a tax return if you are married and live in a community property
state. Community property states are: Arizona, California,
Idaho, Louisiana, Nevada, New Mexico, Texas, Washington,
and Wisconsin. Generally, community property laws provide
that you and your spouse are both entitled to one-half of your
total community income and expenses. If you and your spouse
filed a joint return in a community property state, you are both
jointly and severally liable for the total liability on the return. If
you request relief from joint and several liability, state
community property laws are not taken into account in
determining whether an item belongs to you or your spouse or
former spouse.
If you and your spouse filed separate returns, each of you
must report one-half of your total community income and
expenses on your separate returns. See Pub. 555, Community
Property, for details.
If you were a married resident of a community property state,
but did not file a joint return and are now liable for an underpaid
or understated tax, check “Yes” on line 5; you have the
following two ways to get relief.
1. Relief from liability arising from community property law.
You are not responsible for the tax related to an item of
community income if all of the following conditions exist.
• You did not file a joint return for the tax year.
• You did not include the item in gross income on your
separate return.
• Under section 879(a), the item was income that belonged to
your spouse or former spouse. For details, see Community
Property Laws in Pub. 971.
• You establish that you did not know of, and had no reason to
know of, that item.
• Under all facts and circumstances, it would not be fair to
include the item in your gross income.
If you meet the above conditions, complete this form.

Separation of Liability Relief
You may be allowed separation of liability relief for any
understated tax (defined above) shown on the joint return(s) if
the person with whom you filed the joint return is deceased or
you and that person:
• Are now divorced,
• Are now legally separated, or
• Have lived apart at all times during the 12-month period prior
to the date you file Form 8857.
See Pub. 504, Divorced or Separated Individuals, for details
on divorce and separation.
Exception. If, at the time you signed the joint return, you
knew about any item that resulted in part or all of the
understated tax, then your request will not apply to that part of
the understated tax.
Additional information. For additional information on
separation of liability relief, see Pub. 971.

You must file Form 8857 no later than 6 months before the
expiration of the period of limitations on assessment (including
extensions) against your spouse or former spouse for the tax
year for which you are requesting relief. However, if the IRS
begins an examination of your return during that 6-month
period, the latest time for requesting relief is 30 days after the
examination begins.
2. Equitable relief. If you do not qualify for the relief described
above and are now liable for an underpaid or understated tax
you believe should be paid only by your spouse or former
spouse, you may request equitable relief. See Equitable Relief
on this page.

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Instructions for Form 8857

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What Happens After You File Form 8857

Specific Instructions

We will review your form for completeness and contact your
spouse or former spouse to ask if he or she wants to participate
in the process. Generally, once we have all of the necessary
information to make a decision, we will send a preliminary
determination letter to you and your spouse or former spouse. If
neither of you appeals the decision, we will issue a final
determination letter to both of you.
Note. If you did not file a joint return for the year you are
requesting relief, we will send the determination letters only to
you.
Tax Court review of request. You may be able to petition
(ask) the Tax Court to review your request for relief if:
• The IRS sends you a final determination letter regarding your
request for relief, or
• You do not receive a final determination letter from the IRS
within 6 months from the date you filed Form 8857.

Note. If you need more room to write your answer for any
question, attach more pages. Be sure to write your name and
social security number on the top of all pages you attach.

Lines 1 through 5
You must complete lines 1 through 5 to determine if you should
file Form 8857.

Collection Statute of Limitations
Generally, the IRS has 10 years to collect an amount you owe.
This is the collection statute of limitations. By law, the IRS is not
allowed to collect from you after the 10-year period ends.
If you request relief for any tax year, the IRS cannot collect
from you for that year while your request is pending. But
interest and penalties continue to accrue. Your request is
generally considered pending from the date the IRS receives
your Form 8857 until the date your request is resolved. This
includes the time the Tax Court is considering your request.

If you seek equitable relief for an underpayment of tax,
you will be able to get Tax Court review of your claim
CAUTION only if the tax arose or remained unpaid on or after
December 20, 2006.
The petition must be filed no later than the 90th day after the
date the IRS mails you a final determination letter. If you do not
file a petition, or if you file it late, the Tax Court cannot review
your request for relief. See Pub. 971 for details on petitioning
the Tax Court.

!

After your case is resolved, the IRS can begin or resume
collecting from you. The 10-year period will be increased by the
amount of time your request for relief was pending plus 60
days.

Line 2

How To Get Help

You must indicate that you want a refund in order for the IRS to
consider whether you are entitled to it. If you are granted relief,
refunds are:
• Permitted under innocent spouse relief as explained later
under Limit on Amount of Refund.
• Not permitted under separation of liability relief.
• Permitted in limited circumstances under equitable relief, as
explained under Refunds Under Equitable Relief.

See Pub. 971, Innocent Spouse Relief. To get Pub. 971 and
other IRS forms and publications, go to www.irs.gov or call
1-800-TAX-FORM (1-800-829-3676).
The IRS can help you with your request. If you are
working with an IRS employee, you can ask that
employee, or you can call 1-866-897-4270.
You can use the Innocent Spouse Tax Relief Eligibility
Explorer at www.irs.gov. Click on “Individuals,” “Tax Information
for Innocent Spouses,” and “Explore if you are an Eligible
Innocent Spouse.”
Contacting your Taxpayer Advocate. The Taxpayer
Advocate Service is an independent organization within the IRS
whose employees assist taxpayers who are experiencing
economic harm, who are seeking help in resolving tax problems
that have not been resolved through normal channels, or who
believe that an IRS system or procedure is not working as it
should.
You can contact the Taxpayer Advocate Service by calling
toll-free 1-877-777-4778 or TTY/TDD 1-800-829-4059 to see if
you are eligible for assistance. You can also call or write to your
local taxpayer advocate, whose phone number and address are
listed in your local telephone directory and in Publication 1546,
The Taxpayer Advocate Service of the IRS - How to Get Help
With Unresolved Tax Problems. You can file Form 911,
Application for Taxpayer Assistance Order, or ask an IRS
employee to complete it on your behalf. For more information,
go to www.irs.gov/advocate.
Low income taxpayer clinics (LITCs). LITCs are
independent organizations that provide low income taxpayers
with representation in federal tax controversies with the IRS for
free or for a nominal charge. The clinics also provide tax
education and outreach for taxpayers with limited English
proficiency or who speak English as a second language.
Publication 4134, Low Income Taxpayer Clinic List, provides
information on clinics in your area. It is available at www.irs.gov
or at your local IRS office.
Representation. You may either represent yourself or, with
proper written authorization, have someone else represent you.
Your representative must be someone who is allowed to
practice before the IRS, such as an attorney, certified public
accountant, or enrolled agent (a person enrolled to practice
before the IRS). Use Form 2848, Power of Attorney and
Declaration of Representative, to authorize someone else to
represent you before the IRS.

Proof Required
The IRS will only refund payments you made with your own
money. However, you must provide proof that you made the
payments with your own money. Examples of proof are a copy
of your bank statement or a canceled check. No proof is
required if your individual refund was used by the IRS to pay a
tax you owed on a joint tax return for another year.

Refunds Under Equitable Relief
In the following situations, you are eligible to receive a refund of
certain payments you made.
Underpaid tax. If you are granted relief for an underpaid tax,
you are eligible for a refund of separate payments that you
made after July 22, 1998. However, you are not eligible for
refunds of payments made with the joint return, joint payments,
or payments that your spouse (or former spouse) made. For
example, withholding tax and estimated tax payments cannot
be refunded because they are considered made with the joint
return.
The amount of the refund is subject to the limit discussed
later under Limit on Amount of Refund.
Understated tax. If you are granted relief for an understated
tax, you are eligible for a refund of certain payments made
under an installment agreement that you entered into with the
IRS, if you have not defaulted on the installment agreement.
You are not in default if the IRS did not issue you a notice of
default or take any action to end the installment agreement.
Only installment payments made after the date you filed Form
8857 are eligible for a refund.
The amount of the refund is subject to the limit discussed
next.

Limit on Amount of Refund
The amount of your refund is limited. Read the chart on the next
page to find out the limit.

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Instructions for Form 8857

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IF you file Form 8857 . . .

THEN the refund cannot be more
than . . .

Within 3 years after filing your
return

The part of the tax paid within the 3
years (plus any extension of time
for filing your return) before you
filed Form 8857.

Sign under threat of harm (duress). You are considered to
have signed under threat of harm (duress) if you were unable to
resist demands to sign the return and you would not have
signed the return except for the constraint applied by your
spouse or former spouse. The threat of harm must be directly
connected with the signing of the joint return.

After the 3-year period, but within The tax you paid within the 2 years
2 years from the time you paid the immediately before you filed Form
tax
8857.

Line 19
If your spouse transfers property (or the right to property) to you
for the main purpose of avoiding tax or payment of tax, the tax
liability allocated to you will be increased by the fair market
value of the property on the date of the transfer. The increase
may not be more than the entire amount of the liability. A
transfer will be presumed to have as its main purpose the
avoidance of tax or payment of tax if the transfer is made after
the date that is 1 year before the date on which the IRS sent its
first letter of proposed deficiency. This presumption will not
apply if the transfer was made under a divorce decree, separate
maintenance agreement, or a written instrument incident to
such an agreement. The presumption will also not apply if you
establish that the transfer did not have as its main purpose the
avoidance of tax or payment of tax.

Line 3
Check “Yes” for any tax year to which all of the following apply.

• You filed a joint return for the year listed on line 1.
• At the time you filed the joint return, your spouse owed

past-due federal tax, state income tax, child support, spousal
support, or federal nontax debt, such as a student loan.
• The IRS used (offset) the refund to pay your spouse’s
past-due amount.
If all three of the above apply, do not file Form 8857 for that tax
year. However, you may be able to get back your share of the
refund for that tax year if you file Form 8379, Injured Spouse
Allocation.
If all three of the above do not apply, check “No” and go to
line 4.

Sign Form 8857
The IRS cannot consider your Form 8857 if you do not sign it. If
you do not sign it, we will return it to you. Also be sure to date it.

Line 6

Keep a copy of the completed form for your records.

Enter your current name, social security number, home
address, and best daytime phone number to call you if we need
more information. Also enter your county.
P.O. box. Enter your box number only if your post office does
not deliver mail to your home.
Foreign address. Enter the information in the following order:
City, province or state, and country. Follow the country’s
practice for entering the postal code. Do not abbreviate the
country name.
Change of address. If you move after you file Form 8857,
please use Form 8822, Change of Address, to notify the IRS of
your new address.

Paid Preparer Must Sign
Generally, anyone you pay to prepare Form 8857 must sign it in
the space provided. The preparer must give you a copy of Form
8857 for your records. Someone who prepares Form 8857 but
does not charge you should not sign it.
Privacy Act and Paperwork Reduction Act Notice. We ask
for the information on this form to carry out the Internal
Revenue laws of the United States. We need it to determine the
amount of liability, if any, of which you may be relieved. Internal
Revenue Code sections 66(c) and 6015 allow relief from
liability. If you request relief of liability, you must give us the
information requested on this form. Code section 6109 requires
you to provide your social security number. Routine uses of this
information include giving it to the Department of Justice for civil
and criminal litigation, and to cities, states, and the District of
Columbia for use in administering their tax laws. We may also
disclose this information to other countries under a tax treaty, to
federal and state agencies to enforce federal nontax criminal
laws, or to federal law enforcement and intelligence agencies to
combat terrorism. If you do not provide all the information in a
timely manner, we may not be able to process your request.

Line 7
Enter the current name and SSN (if known) of the person to
whom you were married at the end of the year(s) listed on
line 1.
P.O. box. Enter the box number only if:
• You do not know the street address, or
• The post office does not deliver mail to the street address.
Foreign address. See the instructions for line 6 on this page.

Line 11

You are not required to provide the information requested on
a form that is subject to the Paperwork Reduction Act unless
the form displays a valid OMB control number. Books or
records relating to a form or its instructions must be retained as
long as their contents may become material in the
administration of any Internal Revenue law. Generally, tax
returns and return information are confidential, as required by
Code section 6103.

By law, if a person’s name is signed to a return, it is presumed
to be signed by that person. You must prove that your signature
on the joint return was forged or that you signed under threat of
harm (duress).
Forged signature. Your signature on the joint return is
considered to be forged if it was not signed by you and you did
not authorize (give tacit consent) the signing of your name to
the return.
Tacit consent. Tacit consent means that, based on your
actions at the time the joint return was filed, you agreed to the
filing of the joint return. You may be considered to have given
tacit consent if any of the following apply.
• You gave tax information (such as Forms W-2’s and 1099’s)
to your spouse.
• You did not object to the filing.
• You did not have a valid reason to refuse to file jointly.
• There was an apparent advantage to you in filing a joint
return.
We will also consider whether you filed joint returns with your
spouse or former spouse in prior years and whether you filed a
separate income tax return for that year.

The time needed to complete and file this form will vary
depending on individual circumstances. The estimated average
time is:
Learning about the law or the form, 1 hr., 9 min.; Preparing
the form, 2 hr., 36 min.; and Copying, assembling, and
sending the form to the IRS, 1 hr., 3 min.
If you have comments concerning the accuracy of this time
estimate or suggestions for making this form simpler, we would
be happy to hear from you. You can write to the Internal
Revenue Service, Tax Products Coordinating Committee,
SE:W:CAR:MP:T:T:SP, 1111 Constitution Ave. NW, IR-6406,
Washington, DC 20224. Do not send the form to this address.
Instead, see Where To File on page 1.

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