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Innocent Spouse Relief: Who Qualifies and How to File Form 8857

By Jon Call, EA: Enrolled Agent & NTPI Fellow • CLAW Tax Group

Short answer: Innocent spouse relief lets you ask the IRS to release you from tax on a joint return that your spouse or former spouse caused. One form, Form 8857, covers all three types: innocent spouse relief, separation of liability, and equitable relief. CLAW Tax Group’s Enrolled Agents prepare it with you and work the IRS review.

Matthew Wildes, JD, CPA of Wildes At Law joins when the matter needs an attorney.

Sign a joint return and you sign up for the whole bill. Both spouses owe the tax, interest, and penalties on it. It stays true after a divorce. It stays true if the decree says your former spouse will pay. It stays true if your spouse earned all the income (IRS innocent spouse relief).

Innocent spouse relief is how you ask the IRS to take the part that is not yours off your account. The law is IRC §6015. The form is Form 8857. The deadline can be short, so the first job is finding out whether your clock is already running.

What are the three types of innocent spouse relief, and who qualifies?

IRC §6015 sets out three types of spouse relief. Innocent spouse relief is §6015(b). Separation of liability is §6015(c). Equitable relief is §6015(f). You do not have to pick one. Form 8857 covers all three, and the IRS applies the type you qualify for.

  • Innocent spouse relief, IRC §6015(b). This covers additional tax from your spouse’s errors on a joint return. Think unreported income, deductions or credits they were not eligible for, or a wrong asset value. You must show you did not know, and had no reason to know, about the understatement when you signed. Holding you liable must also be unfair. Relief covers the tax plus related interest and penalties (IRC §6015(b)(1)). If you knew about part of an item but not the full amount, partial relief is possible (IRC §6015(b)(2)).
  • Separation of liability, IRC §6015(c). This splits an understated tax between you and your spouse based on your own incomes and assets. You pay only your share. You must be divorced, legally separated, or widowed. Or you and your spouse must not have been members of the same household for the entire 12 months before you ask (IRS separation of liability relief). It does not apply to an item the IRS shows you actually knew about when you signed, unless you signed under duress. It cannot produce a refund (IRC §6015(c)(3)(C) and §6015(g)(3)).
  • Equitable relief, IRC §6015(f). This is the fallback when the first two do not fit. It is also the type that can reach unpaid tax, meaning tax shown on the return that your spouse never paid. The IRS weighs the full picture (IRS equitable relief). That includes marital status, economic hardship, and what you knew or had reason to know. It also includes any legal obligation to pay, whether you benefited, your good faith compliance since, and your mental and physical health.

You do not have to be divorced for innocent spouse relief or equitable relief. Some doors are closed, though. The IRS lists four (IRS innocent spouse relief). There is no relief for a year where you signed an Offer in Compromise. None where you signed a closing agreement covering the same taxes. None where a court made a final decision denying you relief. None where you took part in a related court case and did not ask for it.

Some taxes are off the table for innocent spouse relief and equitable relief. The IRS excludes household employment taxes, individual shared responsibility payments, business taxes, and trust fund recovery penalties.

How do I request innocent spouse relief on Form 8857?

CLAW Tax Group prepares Form 8857, Request for Innocent Spouse Relief, with you. It goes to the IRS address or fax number in the Form 8857 instructions. It does not go with your tax return or to the Tax Court. Send it there even if you already work with an IRS employee on an audit or collection.

  • It has its own address. By U.S. mail: Internal Revenue Service, P.O. Box 120053, Covington, KY 41012. By private delivery service: Internal Revenue Service, 7940 Kentucky Drive, Stop 840F, Florence, KY 41042. By fax: 855-233-8558 (Instructions for Form 8857).
  • Do not wait for every document. The IRS says not to delay filing because you do not have all the paperwork.
  • Tell the whole story now. If the case reaches the Tax Court, the Court reviews the record the IRS had, plus newly discovered or previously unavailable evidence (IRC §6015(e)(7)). Facts you hold back now may be hard to add later.
  • A notice of deficiency changes the plan. If you received one, the IRS says to also petition the Tax Court within the 90 days. Raise innocent spouse relief there. That deadline does not stop while the IRS reviews Form 8857. The petition is attorney work, handled by Matthew Wildes, JD, CPA of Wildes At Law. See IRS notice of deficiency.
  • Refunds are possible, with limits. Innocent spouse relief and equitable relief can refund payments you made with your own money, if you can prove it. Separation of liability cannot. Some payments never come back: payments made with the joint return, joint payments, and your spouse’s payments. Withholding and estimated tax payments count as made with the joint return (Publication 971).

What is the deadline for innocent spouse relief?

File Form 8857 as soon as you learn of the tax. The reason is simple. The 2 year limit for innocent spouse relief and separation of liability is worded more than one way. IRC §6015(b)(1)(E) and §6015(c)(3)(B) count 2 years from the date the IRS began collection activities against you. The IRS web pages count 2 years from an IRS notice of an audit or taxes due.

The Form 8857 instructions say to file no later than 2 years after the first IRS attempt to collect the tax from you. They list collection activities that may start that clock:

  • The IRS offset your refund against a joint balance for another year and told you about your right to file Form 8857.
  • The IRS filed a claim in a court case you were part of, or one involving your property, including a proof of claim in bankruptcy.
  • The United States sued you to collect the joint liability.
  • The IRS sent a section 6330 notice of intent to levy, usually Letter 11 or Letter 1058. See LT11 and Letter 1058.

Filing early means you do not have to rely on the gap between those wordings. If an IRS notice or a collection letter is on your table, the clock may already be running.

Equitable relief has its own timing. For tax that is still unpaid, you can ask for as long as the IRS can still collect it under IRC §6502 (see CSED). For a refund of tax already paid, the refund deadline applies. That is 3 years after the return was filed or 2 years after the tax was paid, whichever is later (IRC §6015(f)(2); IRS equitable relief).

What is the difference between injured spouse and innocent spouse relief?

These are two different requests. Innocent spouse relief asks the IRS to relieve you of tax on a joint return. Injured spouse relief gets back your share of a joint refund the IRS used to pay your spouse’s separate debt. Injured spouse relief uses Form 8379, not Form 8857.

  • It covers specific debts. A joint refund can be taken for your spouse’s past due child support, debts to federal agencies, state income tax, or state unemployment compensation debts (IRS injured spouse relief).
  • It has a refund deadline. File Form 8379 within 3 years from the date the return was filed or 2 years from the date the tax was paid, whichever is later.
  • It can ride with your return. File Form 8379 with the joint return or by itself. The IRS says it can take up to 8 weeks to process by itself, and longer with the return. In a community property state, the IRS divides the refund under state law.

Using the wrong form slows things down. The Internal Revenue Manual tells IRS employees to explain the difference when someone files Form 8857 for an injured spouse claim (IRM 25.15.1.2.5). Our tax relief services page covers both.

Will the IRS contact my spouse or former spouse?

Yes, the IRS must contact your spouse or former spouse. The law requires it. There are no exceptions, even for victims of spousal abuse or domestic violence. The IRS tells them you filed Form 8857 and lets them take part in the process.

  • Your contact details stay private. The IRS will not disclose your current name, address, phone numbers, employer, income, or assets. Other information it uses to decide could be shared, so black out personal details you do not want seen (Instructions for Form 8857).
  • Your spouse can respond. The IRS must notify the nonrequesting spouse and give them a chance to submit information, though they do not have to (Treas. Reg. §1.6015-6). They also get notice and a chance to join a Tax Court case (IRC §6015(e)(4)).
  • Tax Court works differently. If you petition the Tax Court, your spouse may see your personal information unless you ask the Court to withhold it.
  • Abuse can change the knowledge rule. The IRS says you may still qualify even if you knew about the errors. That applies if you were abused before signing, did not challenge the items out of fear, or signed because you were pressured or threatened. For equitable relief, Rev. Proc. 2013-34 expands how the IRS weighs abuse and financial control.

Can the IRS collect from me while my innocent spouse request is pending?

CLAW Tax Group’s answer is generally no. Once the IRS receives your Form 8857, it cannot collect from you for that year while the request is pending. That includes any time the Tax Court has the case. Interest and penalties keep growing. The IRS can resume collecting whatever you still owe after the case is resolved.

  • The law bars levies and collection suits. No levy or court proceeding to collect from you until the 90 day window to petition the Tax Court closes. If you petition, the bar runs until the Tax Court decision is final (IRC §6015(e)(1)(B)). The statute carves out jeopardy and termination assessments (IRC §6851 and §6861).
  • Your spouse is not protected. The Internal Revenue Manual says collection against the nonrequesting spouse is not prohibited and should continue (IRM 25.15.1.7).
  • The collection clock pauses. The collection period, generally 10 years, is suspended while the IRS is barred, plus 60 days (IRC §6015(e)(2)). See CSED.
  • You can waive the bar. If you agree with the IRS decision, you can waive the collection restriction in writing on Form 870-IS (IRC §6015(e)(5); IRM 25.15.1.7).
  • Stay current. The IRS says to keep filing and paying your taxes as usual while you wait.

If a levy is already here, see IRS levy release for bank accounts and IRS wage garnishment release for paychecks. A section 6330 notice of intent to levy also gives you the right to a Collection Due Process hearing. Spousal defenses can be raised there (IRC §6330(c)(2)(A)(i)).

Can I appeal an innocent spouse decision or go to Tax Court?

CLAW Tax Group’s Enrolled Agents handle the IRS appeal, and Wildes At Law handles the Tax Court petition. You have 30 days from the date of the preliminary determination letter to appeal on Form 12509. You have 90 days from the date of the final determination letter to petition the Tax Court.

  1. The IRS sends a preliminary letter. It goes to you and your spouse or former spouse, and either of you can appeal within 30 days (IRS Appeals, innocent spouse).
  2. The appeal goes on Form 12509. That is the Innocent Spouse Statement of Disagreement. Send it to the IRS address on your letter, not to the Independent Office of Appeals. The IRS says sending it to Appeals delays your case.
  3. A final letter follows. If neither spouse appeals, the IRS issues a final determination letter. If either spouse appeals, Appeals issues it.
  4. Tax Court is the next step. The requesting spouse can petition the Tax Court after the final determination letter, or after 6 months with no final letter. The petition is due no later than the 90th day after the IRS mails the final letter (IRC §6015(e)(1)(A)). Miss it, and the Tax Court cannot review your request.
  5. The record matters. The Tax Court reviews the case fresh, but on the record the IRS had plus newly discovered or previously unavailable evidence (IRC §6015(e)(7)).

Tax Court is attorney work at CLAW Tax Group. Matthew Wildes, JD, CPA is admitted to practice before the United States Tax Court and handles these petitions through Wildes At Law.

How do community property laws affect innocent spouse relief?

Where you lived matters, because community property rules change the analysis. The community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. On a joint return, the IRS decides whose item it is without regard to community property law (IRC §6015(a)).

  • Separate returns have their own relief. If you filed separately in a community property state, you may owe tax on your spouse’s share of community income. IRC §66(c) can move that item to your spouse. Five things must be true. You did not file jointly. You left the item off your return. The item is your spouse’s income under IRC §879(a). You did not know or have reason to know of it. Including it in your income would be unfair.
  • That relief has a tighter deadline. File Form 8857 no later than 6 months before the assessment period against your spouse ends. That period is generally 3 years from when the return was filed. If the IRS opens an exam of your return in that window, the deadline is 30 days after its first contact letter (Instructions for Form 8857).
  • Equitable relief is the backup. If you do not qualify under IRC §66(c), you can still ask for equitable relief.
  • Tax Court review is not available for community income relief. The Form 8857 instructions exclude those requests from Tax Court review.

Wisconsin is on that list. If you filed separately there, look at this before assuming spouse relief does not apply to you. Our Wisconsin tax help page covers state issues.

Who handles innocent spouse relief at CLAW Tax Group

Jon Call, EA and our Enrolled Agents handle innocent spouse requests before the IRS under Form 2848. That means transcripts, Form 8857, the written statement, IRS follow up, and the appeal on Form 12509. Enrolled Agents have unlimited representation rights before the IRS, including appeals (IRS credentials). Matthew Wildes, JD, CPA handles attorney work through Wildes At Law, including Tax Court petitions after a final determination or a notice of deficiency.

What we do

We start with IRS account transcripts for every joint year. They show what was assessed, when collection started, and which notices went out. That tells us which deadline applies and which types of relief are still open.

Then we build Form 8857 around what the IRS weighs. What did you know when you signed? Who handled the money? Did you benefit? What has happened since? It has to work for two readers, the IRS reviewer and, if it comes to that, a Tax Court judge. No one can promise the IRS will grant relief. A complete, accurate request is what gives you a real shot.

Call or text: (651) 323-2255
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CLAW Tax Group is a tax resolution firm based in White Bear Lake, Minnesota, serving clients in all 50 states. Affiliated with Wildes At Law.

References: IRC 6015(a) through (h); IRC 66(c); IRC 6330(c)(2)(A)(i); Treas. Reg. 1.6015-6; IRM 25.15.1.2.5, 25.15.1.7, and 25.15.1.8; Instructions for Form 8857 (Rev. 06/2021); Publication 971 (Rev. 12/2021); IRS Innocent spouse relief; IRS Relief by separation of liability; IRS Equitable relief; IRS Injured spouse relief; IRS Tax relief for spouses; IRS Appeals, Innocent spouse; About Form 8379; IRS Understanding tax return preparer credentials and qualifications.

Frequently asked questions

Do I have to be divorced to get innocent spouse relief?
CLAW Tax Group gives the same answer the IRS rules give: no. Innocent spouse relief under IRC §6015(b) and equitable relief under §6015(f) do not require a divorce. Only separation of liability under §6015(c) depends on your status. You must be divorced, legally separated, or widowed, or you and your spouse must not have been members of the same household for the entire 12 months before you ask. Form 8857 covers all three.
Can I get innocent spouse relief if my spouse earned all the income?
CLAW Tax Group’s answer has two parts. First, earning none of the income does not remove your liability on a joint return. The IRS says both spouses are responsible even if one spouse earned all of it. Second, relief turns on other facts. Did you know or have reason to know about the errors? Would it be unfair to hold you liable? For separation of liability, what is your marital or household status?
What if I knew about the income but not how much?
Partial relief may be available in that situation. IRC §6015(b)(2) covers it. If you knew about an item but did not know, and had no reason to know, its full extent, you can be relieved of the tax on the part you did not know about. The IRS separation of liability page also allows partial relief if you did not know about part of an item.
Does my divorce decree protect me from my former spouse’s tax debt?
CLAW Tax Group’s answer is no, not as far as the IRS is concerned. The Form 8857 instructions say you remain jointly and severally liable even if the divorce decree says your former spouse is solely responsible for the tax. The IRS can still collect from you. To change that, you have to request relief on Form 8857.
Can I get a refund through innocent spouse relief?
It depends on the type. Innocent spouse relief and equitable relief can refund payments you made with your own money. You need proof, such as a bank statement or canceled check. Separation of liability cannot produce a refund. Payments made with the joint return, joint payments, and your spouse’s payments are not refunded. Withholding and estimated tax payments count as made with the joint return. For equitable relief, ask for a refund within 3 years after the return was filed or 2 years after the tax was paid, whichever is later.
How long does the IRS take to decide an innocent spouse request?
Plan for months, not weeks. The IRS says its review may take up to 6 months or longer. It sends a preliminary determination letter to both spouses, either spouse can appeal within 30 days, and then a final determination letter follows. If there is no final letter within 6 months after you filed, you can petition the Tax Court. Wildes At Law handles that step. Keep filing and paying your current taxes while you wait.
Can I get relief if the return was correct but my spouse did not pay the tax?
Look at equitable relief under IRC §6015(f), because it is the type that covers unpaid tax, not just understated tax. The IRS weighs all the facts, including economic hardship and whether you benefited. Its equitable relief page says you cannot claim relief if you knew your spouse would not pay the joint liability. For equitable relief, Rev. Proc. 2013-34 expands how the IRS weighs abuse and financial control by the other spouse.
Can I raise innocent spouse relief at a Collection Due Process hearing?
Yes, when the timing fits. IRC §6330(c)(2)(A)(i) lets you raise appropriate spousal defenses at a Collection Due Process hearing on a proposed levy. Keep the separate Form 8857 clock in mind too. The Form 8857 instructions list a section 6330 notice of intent to levy, usually Letter 11 or Letter 1058, as a collection activity. It may start the 2 year period to request innocent spouse relief or separation of liability.
What if I never agreed to file a joint return?
Then you may not need innocent spouse relief at all. The IRS says that if you did not sign or consent to a joint return, the joint election is invalid. That is not a type of innocent spouse relief. The IRS says to follow the instructions on the notice you received or call the number on it. If you did agree to file jointly, Form 8857 is the route.
Can an Enrolled Agent handle my innocent spouse case?
CLAW Tax Group’s Enrolled Agents handle the IRS side of innocent spouse cases under Form 2848. The IRS says Enrolled Agents, CPAs, and attorneys have unlimited representation rights before the IRS, including appeals. That covers Form 8857, IRS follow up, and the Form 12509 appeal. A Tax Court petition is attorney work, and Matthew Wildes, JD, CPA handles it through Wildes At Law. Jon Call, EA is an Enrolled Agent, not an attorney.