Instructions For Form 8857 - Request For Innocent Spouse Relief (Page 2 of 5) in pdf

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

Do not file Form 8857 with your tax return or the Tax Court.

examines the return and finds $10,000 of income that your

Instead, send it to:

former spouse earned but did not report. With the additional

Internal Revenue Service

income, the total tax becomes $6,500. The understated tax is

Stop 840F, P.O. Box 120053

$1,500, for which you and your former spouse are both liable.

Covington, KY 41012

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

Fax the form and attachments to the IRS at (859) 669-5256 or

erroneous items, but not the full extent of the item(s), you may

(859) 669-7187.

be allowed relief for the part of the understatement you did not

Write your name and social security number on any

know about.

attachments.

Additional information. For additional information on

Send it to the above address or fax it to the above number

innocent spouse relief, see Pub. 971.

even if you are communicating with an IRS employee because

Separation of Liability Relief

of an examination, examination appeal, or collection.

You may be allowed separation of liability relief for any

If you received an IRS notice of deficiency, you also should

understated tax (defined above) shown on the joint return(s) if

file a petition with the Tax Court before the end of the 90-day

the person with whom you filed the joint return is deceased or

period, as explained in the notice. In your petition, you should

you and that person:

raise innocent spouse relief as a defense to the deficiency. By

•

Are now divorced,

doing so, you preserve your rights if the IRS is unable to

•

Are now legally separated, or

properly consider your request before the end of the 90-day

•

Have lived apart at all times during the 12-month period prior

period. Include the information that supports your position,

to the date you file Form 8857.

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

See Pub. 504, Divorced or Separated Individuals, for details

Court is not extended while the IRS is considering your request.

on divorce and separation.

Exception. If, at the time you signed the joint return, you

The IRS Must Contact Your Spouse or

knew about any item that resulted in part or all of the

Former Spouse

understated tax, then your request will not apply to that part of

the understated tax.

By law, the IRS must contact your spouse or former spouse.

Additional information. For additional information on

There are no exceptions, even for victims of spousal abuse or

separation of liability relief, see Pub. 971.

domestic violence.

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

You may be allowed equitable relief if both of the following

process. If you are requesting relief from joint and several

conditions are met.

•

liability on a joint return, the IRS must also inform him or her of

You have an understated tax (defined earlier) or underpaid

its preliminary and final determinations regarding your request

tax (defined next), and

•

for relief.

Taking into account all the facts and circumstances, the IRS

determines it would be unfair to hold you liable for the

However, to protect your privacy, the IRS will not disclose

understated or underpaid tax.

your personal information (for example, your current name,

address, phone number(s), information about your employer,

Equitable relief is the only type of relief available for an

your income or assets) or any other information that does not

underpaid tax.

relate to making a determination about your request for relief

Underpaid tax. An underpaid tax is tax that is properly shown

from liability.

on your return but has not been paid.

If you petition the Tax Court (explained later under What

Example. You and your former spouse filed a joint return

Happens After You File Form 8857), your spouse or

that properly reflects your income and deductions but showed

former spouse may see your personal information,

CAUTION

an unpaid balance due of $5,000. The underpaid tax is $5,000.

unless you ask the Tax Court to withhold it.

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

Types of Relief

underpaid tax of $5,000, for which you and your former spouse

are both liable.

Four types of relief are available. They are:

1. Innocent spouse relief.

Additional information. For additional information on

2. Separation of liability relief.

equitable relief, see Pub. 971 and Rev. Proc. 2003-61. You can

3. Equitable relief.

find Rev. Proc. 2003-61 on page 296 of Internal Revenue

4. Relief from liability arising from community property law.

Bulletin 2003-32 at

(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

You may be allowed innocent spouse relief only if all of the

following apply.

state. Community property states are: Arizona, California,

•

Idaho, Louisiana, Nevada, New Mexico, Texas, Washington,

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

and Wisconsin. Generally, community property laws provide

that you and your spouse are both entitled to one-half of your

erroneous items (defined below) of the person with whom you

filed the joint return.

total community income and expenses. If you and your spouse

•

You can show that when you signed the return(s) you did not

filed a joint return in a community property state, you are both

know and had no reason to know that the understated tax

jointly and severally liable for the total liability on the return. If

existed (or the extent to which the understated tax existed).

you request relief from joint and several liability, state

•

Taking into account all the facts and circumstances, it would

community property laws are not taken into account in

be unfair to hold you liable for the understated tax.

determining whether an item belongs to you or your spouse or

former spouse.

Understated tax. You have an understated tax if the IRS

determined that your total tax should be more than the amount

If you were a married resident of a community property state,

actually shown on the return.

but did not file a joint return and are now liable for an underpaid

-2-

Instructions for Form 8857 (Rev. 09-2011)

Instructions For Form 8857 - Request For Innocent Spouse Relief Page 2

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