Appendix Six

• Author: Brian C. Vertz and Mitchell E. Benson
• Pages: 436-448

Appendix Six Divorce Taxation A-26

APPENDIX SIX

ΙΡΣ Φορµ 8857, Ρεθυεστ φορ Ιννοχεντ Σπουσε Ρελιεφ

Instructions for Form 8857

(Rev. January 2014)

Request for Innocent Spouse Relief

Department of the Treasury

Internal Revenue Service

Section references are to the Internal Revenue Code unless

otherwise noted.

General Instructions

Note. In these instructions, the term “your spouse or former

spouse” means the person who was your spouse for the year(s)

you want relief. This is the person whose name you enter on

line 5.

Future Developments

For the latest information about developments related to Form

8857 and its instructions, such as legislation enacted after they

were published, go to www.irs.gov/form8857.

What's New

The Internal Revenue Service has issued Revenue Procedure

2013-34, available at www.irs.gov/irb/2013-43_IRB/ar07.html.

This revenue procedure expands how the IRS will take into

account abuse and financial control by the nonrequesting

spouse in determining whether equitable relief is warranted. It

also broadens the availability of refunds in cases involving

deficiencies. See the instructions for Line 31, later.

Purpose of Form

When you file a joint income tax return, the law makes both you

and your spouse responsible for the entire tax liability. This is

called joint and several liability. Joint and several liability applies

not only to the tax liability you show on the return but also to any

additional tax liability the IRS determines to be due, even if the

additional tax is due to the income, deductions, or credits of your

spouse or former spouse. You remain jointly and severally liable

for taxes, and the IRS can still collect them from you, even if you

later divorce and the divorce decree states that your former

spouse will be solely responsible for the tax.

If you believe, taking into account all the facts and

circumstances, only your spouse or former spouse should be

held responsible for all or part of the tax, you should request

relief from the tax liability, including related penalties and

interest. To request relief, you must file Form 8857. The IRS will

use the information you provide on the form, and any

attachments you submit, to determine if you are eligible for relief.

The IRS will contact you if additional information is needed.

Married people who did not file joint returns, but who lived in

community property states may request relief from liability for tax

attributable to an item of community income. Community

property states are Arizona, California, Idaho, Louisiana,

Nevada, New Mexico, Texas, Washington, and Wisconsin. See

Community Property Laws, later.

Note. We recognize that some of the questions on the form

involve sensitive subjects. However, we need this information to

evaluate the circumstances of your case and properly determine

whether you qualify for relief.

Situations in Which You Should Not File Form

8857

Do not file Form 8857 for any tax year to which the following

situations apply, even if you checked “Yes” on line 1.

In a final decision a court considered whether to grant you

relief from the joint liability and decided not to do so.

In a final decision a court did not consider whether to grant

you relief from the joint liability, but you meaningfully participated

in the proceeding and could have asked for relief.

You entered into an offer in compromise with the IRS.

You entered into a closing agreement with the IRS that

disposed of the same liability for which you want to seek relief.

However, see Pub. 971, Innocent Spouse Relief, for an

exception that applies to TEFRA partnership proceedings.

You answered “No” to question 1.

When To File

You should file Form 8857 as soon as you become aware of a

tax liability for which you believe only your spouse or former

spouse should be held responsible. The following are some of

the ways you may become aware of such a liability.

The IRS is examining your tax return and proposing to

increase your tax liability.

The IRS sends you a notice.

However, you generally must file Form 8857 no later than 2

years after the first IRS attempt to collect the tax from you. (But

see the exceptions below for different filing deadlines that

apply.) For this reason, do not delay filing because you do not

have all the required documentation.

Collection activities that may start the 2-year period are:

The IRS offset your income tax refund against an amount you

owed on a joint return for another year and the IRS informed you

about your right to file Form 8857.

The filing of a claim by the IRS in a court proceeding in which

you were a party or the filing of a claim in a proceeding that

involves your property. This includes the filing of a proof of claim

in a bankruptcy proceeding.

The filing of a suit by the United States against you to collect

the joint liability.

The issuance of a section 6330 notice, which notifies you of

the IRS' intent to levy and your right to a collection due process

(CDP) hearing. The IRS usually sends a section 6330 notice by

issuing a Letter 11 or Letter 1058.

Exception for equitable relief. The amount of time to request

equitable relief depends on whether you are seeking relief from a

balance due, seeking a credit or refund, or both:

Balance Due – Generally, you must file your request within the

time period the IRS has to collect the tax. Generally, the IRS has

10 years from the date the tax liability was assessed to collect

the tax. In certain cases, the 10-year period is suspended. The

amount of time the suspension is in effect will extend the time

the IRS has to collect the tax. See Pub. 594, The IRS Collection

Process, for details.

Credit or Refund – Generally, you must file your request within

3 years after the date the original return was filed or within 2

years after the date the tax was paid, whichever is later. But you

may have more time to file if you live in a federally declared

disaster area or you are physically or mentally unable to manage

your financial affairs. See Pub. 556, Examination of Returns,

Appeal Rights, and Claims for Refund, for details.

Both a Balance Due and a Credit or Refund – If you are

seeking a refund of amounts you paid and relief from a balance

due over and above what you have paid, the time period for

credit or refund will apply to any payments you have made, and

Jan 30, 2014 Cat. No. 24646K

APPENDIX SIX