Administrative appeal rights in innocent spouse cases.

• Author: Ely, Mark H.

Under Sec. 6013 (d) (3), married taxpayers filing jointly are jointly and severally liable for tax. In certain circumstances, Sec. 6015 provides innocent spouse relief from liability on request, as well as various administrative appeal rights to the requesting spouse. In Rev. Proc. 2003-19, the IRS has now granted some of these rights to nonrequesting spouses whose spouses of former spouses sought innocent spouse relief from joint and several liability under Sec. 6015.

Prior to Rev. Proc. 2003-19, the Service had given only the spouse requesting relief the right to file a written protest and receive an administrative conference with the IRS's Office of Appeals (Appeals) for a determination. The new procedure allows the nonrequesting spouse the right to file a written protest and have an Appeals conference on a decision that granted partial or full innocent spouse relief to the requesting spouse. In most cases, the nonrequesting spouse will protest a decision granting relief to the requesting spouse, but cannot appeal the decision to the Tax Court, under Rev. Proc. 2003-19. Sec. 6015(e) (1) (A) gives that right only to the requesting spouse. Thus, the nonrequesting spouse generally has no recourse once the Service makes a final innocent spouse determination.

General Procedures

To apply for relief, a requesting spouse has to file Form 8857, Request for Innocent Spouse Relief, or submit a written statement to the IRS containing the same information required by Form 8857.When a taxpayer files such a request under Sec. 6015, the IRS will issue a preliminary determination letter based on the claims merits. If the determination grants full or partial relief to the requesting spouse, the Service will suspend processing of the claim for 45 days, pending an appeal by the nonrequesting spouse, and notify the requesting spouse that the nonrequesting spouse has the right to protest the preliminary determination. The IRS will notify both spouses simultaneously of a preliminary determination to grant full or partial relief.

The nonrequesting spouse can file a written protest and seek an Appeals conference, by requesting it in writing within 30 calendar days of the mailing date of the preliminary determination notice. Such a request suspends further processing of the requesting spouse's claim for relief pending the outcome.

If only the nonrequesting spouse files a written protest asking...