Request for Innocent Spouse Relief

Instructions for Form 8857

Department of the Treasury
Internal Revenue Service

(Rev. September 2011)

Request for Innocent Spouse Relief
For use with Form 8857 (Rev. September 2010)
Section references are to the Internal Revenue Code unless
otherwise noted.

General Instructions

later.

When To File

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.

What’s New
Expanded filing deadline for equitable relief. The period of
time in which you may request equitable relief has been
expanded. See When To File on this page.
More information. For more information about the latest
developments on Form 8857 and its instructions, go to www.irs.
gov/form8857.

Purpose of Form

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 generally 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 the exceptions below for
different filing deadlines that apply.) 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:

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 can still collect them from you,
even if you later divorce and the divorce decree states that your
former spouse will be solely responsible for the tax.
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, and Wisconsin. See
Community Property Laws later.
Note. We recognize that some of the questions on the form
involve sensitive subjects. However, we need this information to
evaluate the circumstances of your case and properly
determine whether you qualify for relief.

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, Innocent Spouse Relief, for an
exception that applies to TEFRA partnership proceedings.
Sep 20, 2011

• You check “Yes” on line 3. See the instructions for line 3

• 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 and Letter 1058.

Exception for equitable relief. On July 25, 2011, the IRS
issued Notice 2011-70 (available at www.irs.gov/irb/
2011-32_IRB/ar11.html) expanding the amount of time to
request equitable relief. The amount of time to request
equitable relief depends on whether you are seeking relief from
a balance due, seeking a credit or refund, or both:
• Balance Due – Generally, you must file your request within
the time period the IRS has to collect the tax. Generally, the
IRS has 10 years from the date the tax liability was assessed to
collect the tax. In certain cases, the 10-year period is
suspended. The amount of time the suspension is in effect will
extend the time the IRS has to collect the tax. See Pub. 594,
The IRS Collection Process, for details.
• Credit or Refund – Generally, you must file your request
within 3 years after the date the original return was filed or
within 2 years after the date the tax was paid, whichever is
later. But you may have more time to file if you live in a federally
declared disaster area or you are physically or mentally unable
to manage your financial affairs. See Pub. 556, Examination of
Returns, Appeal Rights, and Claims for Refund, for details.
• Both a Balance Due and a Credit or Refund – If you are
seeking a refund of amounts you paid and relief from a balance
due over and above what you have paid, the time period for
credit or refund will apply to any payments you have made, and
the time period for collection of a balance due amount will apply
to any unpaid liability.
Exception for relief based on community property laws. If
you are requesting relief based on community property laws, a
different filing deadline applies. See Relief from liability arising
from community property law discussed later under Community
Property Laws.

Cat. No. 24646K

Where To File

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.

Do not file Form 8857 with your tax return or the Tax Court.
Instead, send it to:
Internal Revenue Service
Stop 840F, P.O. Box 120053
Covington, KY 41012
OR
Fax the form and attachments to the IRS at (859) 669-5256 or
(859) 669-7187.
Write your name and social security number on any
attachments.
Send it to the above address or fax it to the above number
even if you are communicating with an IRS employee because
of an examination, examination appeal, or collection.
If you received an IRS notice of deficiency, you also should
file a petition with the Tax Court before the end of the 90-day
period, as explained in the notice. In your petition, you should
raise innocent spouse relief as a defense to the deficiency. 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.

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.

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.
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.

Equitable Relief
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 later under What
Happens After You File Form 8857), your spouse or
CAUTION
former spouse may see your personal information,
unless you ask the Tax Court to withhold it.

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/irb/2003-32_IRB/ar16.html.

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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).

Community Property Laws

Innocent Spouse Relief

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 were a married resident of a community property state,
but did not file a joint return and are now liable for an underpaid

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.

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Instructions for Form 8857 (Rev. 09-2011)

Contacting your Taxpayer Advocate. The Taxpayer
Advocate Service is an independent organization within the
IRS. We help taxpayers who are experiencing economic harm,
such as not being able to provide necessities like housing,
transportation, or food; taxpayers who are seeking help in
resolving tax problems with the IRS; and those who believe that
an IRS system or procedure is not working as it should.
You can contact the Taxpayer Advocate Service by calling
your local advocate, whose number is in your phone book, in
Pub. 1546, Taxpayer Advocate Service - Your Voice at the IRS,
and at www.IRS.gov/advocate. You can also call toll-free
1-877-777-4778 or TTY/TDD 1-800-829-4059. You can file
Form 911, Request for Taxpayer Advocate Service Assistance
(And 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). The Low Income
Taxpayer Clinic program serves individuals who have a
problem with the IRS and whose income is below a certain
level. LITCs are independent from the IRS. Most LITCs can
provide representation before the IRS or in court on audits, tax
collection disputes, and other issues for free or a small fee. If an
individual’s native language is not English, some clinics can
provide multilingual information about taxpayer rights and
responsibilities. For more information, see Publication 4134,
Low Income Taxpayer Clinic List. This publication is available at
IRS.gov, by calling 1-800-TAX-FORM (1-800-829-3676), 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.

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.
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
date of the IRS’ initial contact letter to you. The period of
limitations on assessment is the amount of time, generally 3
years, that the IRS has from the date you filed the return to
assess taxes that you owe.
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,
earlier.

What Happens After You File Form 8857
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. If either or both of you
appeal to the IRS Office of Appeals, Appeals will issue a final
determination letter to both of you after consideration of your
appeal.
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.

Specific Instructions
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.
Also write your name and social security number on the top
of the documents and statements required by lines 2, 8, 10, 11,
12, and 13.

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.
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.

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.

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How To Get Help
See Pub. 971, Innocent Spouse Relief. To get Pub. 971 and
other IRS forms and publications go to IRS.gov or call
1-800-TAX-FORM (1-800-829-3676).

Line 2
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 later.

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 by going to IRS.gov and entering “Innocent
Spouse” in the search box.
Instructions for Form 8857 (Rev. 09-2011)

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Proof Required

relief, enter your former name in parentheses after your current
name. For example, enter “Jane Maple (formerly Jane Oak).”
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.

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.

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 above.

Line 12
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 duress
(threat of harm or other form of coercion). Attach a statement
explaining why you believe your signature was forged or you
signed under 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 even if you now claim the signature on
the return is not yours. Whether you have tacitly consented to
the filing of the joint return is based on an examination of all the
facts of your case. Factors that may support a finding that you
consented to the filing of the joint return include the following.
• You gave tax information (such as Forms W-2 and 1099) to
your spouse.
• You did not object to the filing.
• There was an apparent advantage to you in filing a joint
return.
• You filed joint returns with your spouse or former spouse in
prior years.
• You failed to file a married filing separate return and you had
a filing requirement.
Sign under duress. You are considered to have signed under
duress (threat of harm or other form of coercion) 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 duress must be directly
connected with the signing of the joint return.

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

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

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.

Line 20
You may not be entitled to relief if either of the following applies.
• Your spouse (or former spouse) transferred property (or the
right to property) to you for the main purpose of avoiding tax or
payment of tax. A transfer will be presumed to meet this
condition 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.
• The IRS proves that you and your spouse (or former spouse)
transferred property to one another as part of a fraudulent
scheme. A fraudulent scheme includes a scheme to defraud the
IRS or another third party such as a creditor, former spouse, or
business partner.
For more information about transfers of property, see Pub. 971.
Fair market value. Fair market value is the price at which
property would change hands between a willing buyer and a
willing seller when both have reasonable knowledge of the
relevant facts and neither has to buy or sell.

Line 4
Check “Yes” if a return claiming married filing jointly status was
filed for the tax year listed on line 1. Check “Yes” even if you
signed the return under duress or your signature was forged.

Line 6
Enter your current name, social security number, current
mailing address, and best daytime phone number to call you if
we need more information. Also enter your county.
If your current name is different from your name as shown
on your tax return for any year for which you are requesting

Line 23
See the instructions for line 20 for the definition of fair market
value.

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Instructions for Form 8857 (Rev. 09-2011)

Sign Form 8857

terrorism. If you do not provide all the information in a timely
manner, we may not be able to process your request.

If you do not sign Form 8857, the IRS cannot consider your
request and will return it to you. Also be sure to date it.
Keep a copy of the completed form for your records.

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.

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.

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.

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. Requesting relief from liability is voluntary. 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, the District of
Columbia, and U.S. commonwealths and possessions 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

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 email us at taxforms@irs.
gov. Enter “Forms Comment”on the subject line. Or you can
write to the Internal Revenue Service, Tax Products
Coordinating Committee, SE:W:CAR:MP:T:M:S, 1111
Constitution Ave. NW, IR-6526, Washington, DC 20224. Do not
send the form to this address. Instead, see Where To File
earlier.

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