Form 8857: Request for Innocent Spouse Relief (2021) — A Complete Guide
When you file a joint tax return with your spouse, both of you are legally responsible for the entire tax bill—even if only one person made the mistakes or earned the income. Form 8857 is your lifeline if you're being held responsible for tax problems that your spouse or ex-spouse created. This guide breaks down everything you need to know about requesting innocent spouse relief in plain English.
What Form 8857 Is For
Form 8857 is the official IRS form that lets you request relief from paying taxes, penalties, and interest when your spouse (or former spouse) made errors on a joint tax return that you signed. When couples file jointly, the IRS can come after either spouse for the full amount owed—a legal principle called "joint and several liability." This remains true even after divorce, regardless of what your divorce decree says about who owes the taxes.
The form covers three main types of relief. Innocent spouse relief applies when your spouse understated taxes by underreporting income or claiming improper deductions, and you didn't know about it. Separation of liability relief divides up the understated tax between you and your ex-spouse if you're now divorced, legally separated, or have lived apart for at least 12 months. Equitable relief is a catch-all option for situations where the other types don't apply, but it would still be unfair to hold you responsible for unpaid or understated taxes.
There's also a special provision for residents of community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) who filed separately but are still being held liable for their spouse's income under state law.
When You’d Use Form 8857
Late/Amended Filing
You should file Form 8857 as soon as you become aware of a tax problem—typically when you receive an IRS audit notice, a bill for additional taxes, or when the IRS starts collection activities like offsetting your tax refund or sending a notice of intent to levy your property.
The general deadline is within 2 years of the first IRS collection attempt against you. However, if you're requesting equitable relief, different deadlines apply depending on whether you owe a balance or are seeking a refund. For balances due, you generally have until the IRS's 10-year collection period expires. For refunds, you typically must file within 3 years of filing the original return or 2 years from when you paid the tax, whichever is later.
Don't wait until you have all your documentation perfectly organized—the clock is ticking. File the form even if your paperwork is incomplete, and you can submit additional evidence later. Missing the deadline could mean losing your right to relief entirely, and the IRS won't make exceptions just because you didn't know about the form.
Key Rules or Details for 2021
The June 2021 revision of Form 8857 maintained several critical rules that directly affect your eligibility. First, you must have actually filed a joint return to qualify for innocent spouse or separation of liability relief (community property relief follows different rules). Second, the tax problem must be an "understated tax"—meaning the IRS determined you owe more than what was shown on your return due to unreported income, false deductions, improper credits, or incorrect property basis.
To qualify for innocent spouse relief, you must prove you didn't know—and had no reason to know—about the tax errors when you signed the return. The IRS examines your education, business experience, financial situation, and whether you asked reasonable questions about suspicious items. If you knew about some errors but not their full extent, you might qualify for partial relief on the portion you didn't know about.
One of the most important protections for abuse victims comes from Revenue Procedure 2013-34, which the 2021 instructions specifically reference. If you were subjected to abuse or if your spouse maintained financial control through coercion, the IRS will take these factors into account when determining whether relief is warranted. You may qualify even if you technically "knew" about tax errors if you were afraid to challenge them.
The form requires you to provide detailed information about your marriage, finances, household circumstances, and why you believe you shouldn't be held responsible. The IRS must notify your spouse or former spouse that you filed the form—there are no exceptions, even in cases of domestic violence—but they will protect your personal information like your current address, phone number, and income details.
Step-by-Step (High Level)
Step 1: Determine eligibility. Answer the questions on lines 1 and 2 of the form to see if you should file Form 8857 or if you need Form 8379 (Injured Spouse Allocation) instead. They address different problems—Form 8857 is for when your spouse caused tax errors, while Form 8379 is for when the IRS takes your refund to pay your spouse's pre-existing debts.
Step 2: Gather documentation. Collect copies of the tax returns in question, IRS notices, financial records, and any evidence showing you didn't know about the errors. If abuse or financial control was involved, document it with police reports, restraining orders, medical records, or affidavits from counselors or witnesses.
Step 3: Complete the form thoroughly. Provide detailed answers to all questions about your current situation, the tax years involved, your spouse's information, and your reasons for requesting relief. Attach additional pages if you need more space—the IRS needs a complete picture of your circumstances. Explain in detail why it would be unfair to hold you responsible.
Step 4: Mail or fax the form. Send your completed Form 8857 to the IRS address shown in the instructions (P.O. Box 120053, Covington, KY 41012 for regular mail, or 7940 Kentucky Drive, Stop 840F, Florence, KY 41042 for private delivery services). You can also fax it to 855-233-8558. Do not file it with your tax return or send it to your local IRS office.
Step 5: Continue paying what you can. While your request is being reviewed, the IRS cannot collect the disputed amount from you, but interest and penalties continue to accrue. File and pay any current-year taxes as usual to avoid creating new problems.
Common Mistakes and How to Avoid Them
Waiting too long to file. The biggest mistake is missing the deadline. Many people don't realize relief is available until years after their divorce or separation. File as soon as you learn about a tax liability that should be your spouse's responsibility—don't wait for the "perfect" time or complete documentation.
Confusing innocent spouse relief with injured spouse relief. Form 8857 is for when your spouse caused tax errors or underpayments that you shouldn't have to pay for. Form 8379 is completely different—it's for when the IRS takes your portion of a refund to pay your spouse's separate debts like student loans or back child support. Using the wrong form delays relief.
Providing insufficient detail. The IRS needs specific information about why you didn't know about the tax problems and why holding you responsible would be unfair. Vague statements like "my spouse handled the finances" aren't enough. Explain exactly what you knew, what you asked about, what your spouse told you, and why you had no reason to question the return.
Failing to document abuse or coercion. If financial control or domestic violence played a role, don't assume the IRS will automatically understand your situation. Provide concrete evidence like protection orders, medical records, police reports, or statements from counselors. The IRS considers abuse a significant factor, but only if you document it.
Not following up. The IRS has up to 6 months or longer to review your request. If you move, file Form 8822 to change your address so you don't miss important correspondence. If you haven't heard anything after 6 months, you may have the right to petition the Tax Court—contact the IRS at 855-851-2009 to check your case status.
Overlooking transfers of property. You won't qualify for relief if you and your spouse transferred assets to each other to avoid paying taxes, or if your spouse transferred valuable property to you for the main purpose of tax avoidance. Be prepared to explain any significant property transfers that occurred around the time of tax problems.
What Happens After You File
Once the IRS receives your Form 8857, they will notify your spouse or former spouse that you've requested relief and invite them to participate in the process. Don't be alarmed—this is required by law. The IRS will protect your personal information like your current address and phone number, but your spouse may see information you provided about the tax issues.
The IRS will send you a preliminary determination letter explaining their initial decision. Both you and your spouse have the right to appeal this preliminary decision. If neither of you appeals, or after the appeals process concludes, the IRS will issue a final determination letter. This entire process typically takes 6 months or longer, and in complex cases can take a year or more.
During the review period, the IRS generally cannot take collection action against you for the disputed amount, though there are exceptions. Interest and penalties continue to accumulate on any unpaid taxes. The 10-year statute of limitations for collection is extended by the amount of time your request is pending, plus 60 days.
If the IRS denies your request, you have 90 days from the date of the final determination letter to petition the United States Tax Court to review the decision. The Tax Court is independent from the IRS and can reconsider your request. If you don't file a petition within 90 days, or if you never receive a final determination after 6 months, you still have the right to petition the Tax Court for review.
If relief is granted, the IRS can generally only collect the disputed taxes from your spouse or former spouse, though you remain responsible for any portions that don't qualify for relief. Innocent spouse relief and equitable relief can result in refunds of amounts you already paid (with limits), but separation of liability relief does not allow refunds.
FAQs
Can I get a refund of taxes I already paid if relief is granted?
Under innocent spouse relief and equitable relief, refunds are possible but limited. You can only get back amounts you paid with your own funds—not joint payments, withholding, or estimated tax payments made with the return. The refund is also time-limited based on when you filed Form 8857. Separation of liability relief does not permit refunds.
What if I signed the return but my spouse forged my signature?
If your signature was forged or you signed under duress, explain this on line 11 of Form 8857. If the IRS determines the signature wasn't valid, you'll be removed from the account entirely and won't be liable for any taxes on that return.
Will my ex-spouse find out where I live now?
The IRS protects your current address, phone number, employer, income, and asset information. However, your spouse will be notified that you filed for relief and may see other information you submitted. If you petition the Tax Court, your personal information might become visible unless you ask the court to withhold it.
Can I get relief if I benefited from the unreported income?
Receiving "normal support" doesn't disqualify you, but receiving a "significant benefit" beyond normal support makes relief less likely. For example, if your spouse's unreported gambling winnings paid for lavish vacations or luxury purchases for you, the IRS will consider that you benefited and may deny relief.
What if I'm still married and living with my spouse?
You can still request innocent spouse relief or equitable relief while married and living together. However, separation of liability relief specifically requires that you be divorced, legally separated, or have lived apart for at least 12 months before filing Form 8857.
Do I need a lawyer to file Form 8857?
You can file on your own, but complex cases may benefit from professional help. Consider consulting a tax attorney, CPA, or enrolled agent, especially if you're facing large tax bills or if the Tax Court gets involved. Low Income Taxpayer Clinics (LITCs) provide free or low-cost help to eligible taxpayers.
What happens if the IRS never responds to my Form 8857?
If you don't receive a final determination within 6 months of filing, you have the right to petition the Tax Court to review your request even without receiving a formal denial. This ensures you're not stuck in limbo indefinitely.
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