Form 8857: Request for innocent spouse relief

What is innocent spouse relief?

When you file a joint tax return, both members of the couple are responsible for the accuracy of that return. As a result, if your spouse completed and filed your joint tax return and understated the total amount of taxes you owe as a couple—by omitting income or making mistakes, for example—by default, you’re both on the hook for the missing money.

Innocent spouse relief is the name for an IRS process that can get you, as an individual, off the hook. The key is that your spouse must have taken the lead in filing the return and made mistakes you were not aware of. (You’re the spouse, you’re innocent of the issues on your return, so you can get relief from the additional taxes due.)

You are only eligible for innocent spouse relief when the mistakes relate to taxes due on your spouse's income from employment or self-employment. You cannot file for innocent spouse relief for mistakes related to your own income, combined income, or other sources of income.

Innocent spouse vs injured spouse

Innocent spouse relief and injured spouse relief are related but different. Injured spouse relief is the process by which you can get back the share of your federal tax refund that was used to pay your spouse’s debts.

For example, if you filed jointly and part of your joint refund was used to pay your spouse’s past-due child support, you may be eligible to reclaim the portion of your refund that was withheld.

Injured spouse relief is much more common than innocent spouse relief.

What is form 8857?

Form 8857 is the IRS form you use to file a claim for innocent spouse relief in federal tax matters.

It is an administrative procedure request that goes to the IRS, not part of a tax return or information return. You should not include it with your personal tax return regardless of your marital status.

When should I file Form 8857?

You must file Form 8857 once you become aware of a tax liability for which you believe only your spouse or former spouse should be held liable. You will typically discover the issues that lead to Form 8857 when you get a notice from the IRS saying you owe more in taxes, or as the result of an IRS examination or audit.

You have 2 years to file Form 8857 after the IRS' first attempt to collect on the new balance. If you wait longer, you may lose eligibility, so it’s smart to file Form 8857 and begin the request even if you do not have all of the requested documentation ready yet.

The IRS may take up to 6 months to decide whether to grant your request for innocent spouse relief.

Is Form 8857 the correct form to file for relief?

Generally, filing a joint tax return with your spouse holds both of you responsible for the tax liability, even if specific income items, taxes, deductions, and credits are only attributable to one spouse.

If you don't want to be held responsible for taxes, interest, and penalties related to your spouse's or former spouse’s income on a joint tax return, you may seek relief from the IRS. There are multiple types of relief:

• Innocent spouse relief
• Separation of liability relief
• Equitable relief
• Injured spouse relief (for relief when your refund is being used to offset your spouse's legally enforceable tax debts)

Form 8857 is for innocent spouse relief only. Depending on your particular facts and circumstances, you may need to file a different form to request relief. To figure out if Form 8857 is the right form for you, begin by answering Part I.

Be aware that the IRS can still collect on taxes due even after divorce. This holds true even if the divorce decree states that your former spouse will have sole responsibility for paying the taxes.

Part I: Determining if you should claim innocent spouse relief

Part I reveals whether you should use Form 8857. You must answer yes on Line 1 to apply for innocent spouse relief.

Line 1: Answer yes on Line 1 if:

• You believe your spouse should be solely responsible for any additional taxes owed or other errors and omissions on your joint tax return.
• You are in one of the 9 community property states in the U.S. but do not feel you should be held responsible for the taxes related to community income .

If neither of these situations applies to you, you are not eligible for innocent spouse relief and should not use Form 8857. A Tax Pro at Jackson Hewitt can help you figure out if you may be eligible for other forms of relief.

Line 2: Indicate whether the IRS has taken your share of a joint refund to pay your spouse's tax debts.

• If yes, you may qualify for injured spouse relief and should file Form 8379.
• If no, fill out the rest of Form 8857 only if you answered yes on Line 1.

Line 3: Indicate all of the tax years for which you think innocent spouse relief would apply. You may enter up to 6. If the IRS has already seized funds, list the tax year the seizure was for, not the year they seized it. For example, let’s say the Treasury Department grabbed your 2022 refund to offset your spouse’s delinquent child support for 2010. In that case, the year for which you are seeking relief is 2010, not 2022. You are seeking your share of your 2022 refund, and seeking relief from your spouse’s 2010 liabilities.

Part II: Information about yourself and your spouse(s)

This section starts to paint a picture for the IRS of your relationship and how likely it is you knew about the mistakes your spouse made on your tax return.

Line 4: Indicate your preferred language.

Line 5: Enter your name, address, Social Security number, and the best or safest daytime phone number to reach you.

Line 6: Enter the information about your spouse. If you are filing for innocent spouse relief from more than one spouse, file a different Form 8857 for each one.

Line 7: Indicate the current relationship status between you and the spouse on Line 6. You will need to provide legal proof if you are widowed, divorced, or separated.

Line 8: Indicate your education level at the time the tax returns were filed. This will factor into assumptions the IRS makes about your likely tax knowledge at the time. (On a related note, if you have an accounting, business, or taxation background or coursework, it may affect the IRS' decision concerning whether to award relief.)

Lines 9 and 10: Indicate whether you had health problems at the time the returns were filed, and if there is information you are afraid to disclose in writing but are willing to discuss with IRS staff.

Part III: Tax preparation and spouse’s finances

Part III primarily concerns how involved you were in preparing tax returns with your spouse.

Although it may be difficult to answer some of these questions, for many different reasons, do the best you can. When the IRS is deciding whether to grant you relief, they consider whether you were aware (or should have been) that information on your return was incorrect or omitted, and if you discussed it with your spouse or tax preparer. How much you knew about your spouse’s financial situation and income, and where their income came from, also factors heavily into their decision.

You can attach pages to the form if you need more space for your answers. Jackson Hewitt Tax Pros are very familiar with the form and can help you provide the right amount of detail.

Parts IV, V, and VI: Personal finances and domestic violence disclosure

In Part IV, you will need to list your income, assets, and monthly expenses for yourself and household. If you don’t have this information, or don’t know what to include, a Tax Pro at Jackson Hewitt can help you figure it out.

Part V is not mandatory. It can support your case for relief if you are or were a victim of domestic violence. The IRS must notify the person you named on Line 5 in Part II that you are requesting relief. They will keep your identifying information confidential unless a Tax Court orders them to release it.

You can provide information in Part V to IRS staff in person or over the phone if you do not want it in writing.

Part VI provides room for you to offer any additional information or explanations you think will help the IRS decide in your favor.

Part VII: Would you like a refund?

If you want a tax refund if the IRS grants you relief, and you believe you are due money back, check the box on Line 25. This may seem odd, but the IRS does not give you a refund unless you say you want one.

Form 8857 is tricky. Many people who need to file one are in sensitive situations. Jackson Hewitt has Tax Pros with the experience to help you navigate the process successfully and confidently.

About the Author

Mark Steber is Senior Vice President and Chief Tax Information Officer for Jackson Hewitt. With over 30 years of experience, he oversees tax service delivery, quality assurance and tax law adherence. Mark is Jackson Hewitt’s national spokesperson and liaison to the Internal Revenue Service and other government authorities. He is a Certified Public Accountant (CPA), holds registrations in Alabama and Georgia, and is an expert on consumer income taxes including electronic tax and tax data protection.

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