Innocent Spouse Relief: Form 8857, the Three Types, and Deadlines
Innocent spouse relief under 26 U.S.C. § 6015 can relieve a joint filer of tax, interest and penalties on a joint return. Its three types (innocent spouse relief, separation of liability and equitable relief) are all requested on Form 8857. The first two generally must be requested within 2 years after IRS collection activity begins.
Each spouse on a joint return can be held liable for the full balance. This guide covers the § 6015 relief types, Form 8857 deadlines, collection during review, and Tax Court review.
Deadline to know: the § 6015(b) and § 6015(c) elections must be made no later than 2 years after the IRS begins collection activities against the requester. Equitable relief (§ 6015(f)) follows the § 6502 collection period or, for tax already paid, the § 6511 refund period.
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Why one spouse can owe the whole joint balance
Under § 6013(d)(3), liability on a joint return “shall be joint and several.” Publication 971 says this includes tax the IRS later determines, even when it comes from the other spouse’s income, deductions or credits, and the IRS says it still applies after a divorce decree assigns the tax to one spouse. See our back taxes guide on collection of unpaid balances.
| Type of relief | Who can request it | What it covers |
|---|---|---|
| Innocent spouse relief, § 6015(b) | Any joint filer who meets the conditions | Understated tax from the other spouse’s erroneous items |
| Separation of liability, § 6015(c) | A joint filer who is divorced, legally separated or widowed, or has not shared a household for the 12 months before filing | A deficiency, allocated between the spouses; no refunds |
| Equitable relief, § 6015(f) | A joint filer who does not qualify under (b) or (c) | Understated tax or unpaid tax |
| Community property relief, § 66(c) | A married person in a community property state who did not file jointly | Tax on an item of community income |
Publication 971 says relief is not available for a year covered by an offer in compromise, a closing agreement on the same liability, or certain final court decisions.
How each type of relief works
Innocent spouse relief, § 6015(b)
Section 6015(b)(1) requires an understatement “attributable to erroneous items” of the other spouse, that the requester “did not know, and had no reason to know” of it when signing, and that holding the requester liable would be inequitable. The Form 8857 instructions define erroneous items as income, deductions, credits or basis omitted or misreported. Section 6015(b)(2) allows partial relief when the requester did not know the extent of an item. The IRS says it does not cover tax on the requester’s own income, business taxes or trust fund recovery penalties.
Separation of liability, § 6015(c)
This election limits the requester to their allocated share of a deficiency. Under § 6015(c)(3)(A), the requester must be divorced or legally separated (Publication 971 includes widowed) or not have been a member of the same household at any time in the 12 months before filing. Under § 6015(d)(3)(A), items are allocated as if separate returns had been filed, the requester carries the burden on allocation (§ 6015(c)(2)), and § 6015(g)(3) allows no refund.
Actual knowledge rule. The election does not reach an item if the IRS demonstrates the requester “had actual knowledge” of it when signing, unless the return was signed under duress (§ 6015(c)(3)(C)). Publication 971 says actual knowledge “may not be inferred when you merely had a reason to know.” The irs.gov separation page also mentions a reasonable person test; this page follows the statute.
Equitable relief, § 6015(f), including unpaid tax
When (b) and (c) do not apply, the IRS may relieve a requester of “any unpaid tax or any deficiency” if holding them liable is inequitable. The Form 8857 instructions say equitable relief “is the only type of relief available for an unpaid tax,” meaning tax properly reported but not paid. After threshold conditions, Publication 971 weighs factors from Rev. Proc. 2013-34: marital status, economic hardship, knowledge or reason to know, a legal obligation under a divorce decree, significant benefit, later tax compliance, and mental or physical health. It says “no one factor or a majority of factors necessarily determines the outcome.” For unpaid tax, a timely installment agreement request can create a presumption that the requester reasonably expected the other spouse to pay.
Relief from community property laws, § 66(c)
In the nine community property states Publication 971 lists, a married person who did not file jointly may use Form 8857 to have an item of community income treated as the other spouse’s under § 66(c), if they did not know and had no reason to know of it and including it would be inequitable. Section 66(c) also allows equitable relief.
Form 8857 deadlines by type of relief
| Request | Deadline | Source |
|---|---|---|
| Innocent spouse relief or separation of liability | 2 years after the IRS begins collection activities against the requester | § 6015(b)(1)(E), § 6015(c)(3)(B) |
| Equitable relief, unpaid balance | Before the § 6502 collection period ends, generally 10 years after assessment | § 6015(f)(2)(A) |
| Equitable relief, tax already paid | 3 years from filing or 2 years from payment, whichever is later | § 6015(f)(2)(B), § 6511(a) |
| Community income item, § 66(c) | At least 6 months before the assessment period against the other spouse ends, or 30 days after an exam contact letter in that window | Publication 971 |
Collection activity means a § 6330 levy notice (usually Letter 11 or Letter 1058; see our LT11 and Letter 1058 guide), an offset of the requester’s own refund, a collection suit, or a court claim such as a bankruptcy proof of claim. Under Treas. Reg. § 1.6015-5(b)(2)(i), it “does not include a notice of deficiency; the filing of a Notice of Federal Tax Lien; or a demand for payment of tax.”
Where official sources differ
The irs.gov innocent spouse and separation pages (updated November 8, 2025) say to request relief within 2 years “of receiving an IRS notice of an audit or taxes due,” while the statute, regulation and Publication 971 count from collection activity. Treas. Reg. § 1.6015-5(b)(1) still applies the 2-year limit to equitable relief, which § 6015(f)(2) and Rev. Proc. 2013-34 replaced. The equitable relief page (updated October 11, 2026) counts from “the date we notified you,” while Publication 971 counts from assessment. This page follows the statute.
Filing Form 8857 and what happens next
- File the form. Mail or fax (855-233-8558) Form 8857 as the instructions direct, not with a tax return or the Tax Court.
- Ask for any refund. Check line 25; refunds are limited to payments made with the requester’s own money.
- Watch for a deficiency notice. The instructions say to also petition the Tax Court within its 90-day period, which is not extended while Form 8857 is considered.
- Preliminary determination. Either spouse may appeal within 30 days on Form 12509; a final determination letter follows.
The IRS says review “may take up to 6 months or longer.”
The other spouse’s role
By law the IRS must contact the other spouse, and Publication 971 says “There are no exceptions, even for victims of spousal abuse or domestic violence.” That nonrequesting spouse may participate and is told of the determinations. The IRS will not disclose the requester’s current name, address, phone numbers, employer, income or assets, though other information used in the decision could be shared.
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Domestic abuse considerations
Form 8857 Part V, which the form says “is not mandatory,” asks about abuse, including “physical, psychological, sexual, emotional, or financial abuse.” A “Yes” answer lets the IRS code the account so it can “be sensitive to your situation.” Documentation can include protective orders, police reports and medical or counseling records.
For separation of liability, Publication 971 says a requester with actual knowledge may still qualify if they were a victim of abuse before signing and did not challenge items for fear of retaliation; it also says abuse or financial control can move equitable factors toward relief. The form lists the National Domestic Violence Hotline, 1-800-799-SAFE (7233).
Collection while a request is pending
Section 6015(e)(1)(B) bars levy or court collection of the covered assessment, except as §§ 6851 and 6861 provide, until the 90-day Tax Court window closes or a Tax Court decision is final. Under § 6015(e)(2), the § 6502 collection period is suspended while levy is barred and for 60 days after, and the IRS says the request “doesn’t extend the CSED for your spouse.” Publication 594 (Rev. 1-2026) ends the suspension 90 days after the determination, without the added 60 days.
Relief under § 6015(b) covers “interest, penalties, and other amounts” tied to the understatement; penalties on what remains are covered in our penalty abatement guide. A Collection Due Process hearing can raise “appropriate spousal defenses” under § 6330(c)(2)(A)(i), and Form 12153 has a box for “I claim innocent spouse relief.” Under § 7345(b)(2)(B)(ii), a debt suspended by a § 6015 request is excluded from passport certification.
Tax Court review under § 6015(e)
A requester may petition after the IRS mails a final determination, or after 6 months with none, and no later than the 90th day after that mailing (§ 6015(e)(1)(A)). Our Tax Court petition guide covers filing.
Under § 6015(e)(7), review is de novo and based on “the administrative record established at the time of the determination” plus “any additional newly discovered or previously unavailable evidence.” Tax Court Rule 325 gives the other joint filer notice and 60 days to intervene.
Injured spouse relief is a different request
Injured spouse relief, on Form 8379, recovers a joint filer’s share of a refund applied to the other spouse’s past-due debts; the Form 8857 instructions say it “is different from innocent spouse relief.”
When an attorney matters
The Form 8857 instructions allow a representative “allowed to practice before the IRS, such as an attorney, certified public accountant, or enrolled agent,” authorized on Form 2848. In Tax Court, attorneys are admitted on a bar certificate and nonattorneys must pass the Court’s written examination (Rule 200). Points where these rules matter:
- A deficiency notice during review. The 90-day Tax Court period keeps running.
- Confidentiality. Section 7525 privilege for CPAs and enrolled agents applies only in noncriminal tax matters.
Related guides
Frequently Asked Questions
What is the deadline to file Form 8857?
For innocent spouse relief and separation of liability, 2 years after the IRS begins collection activity against the requester. Equitable relief follows the § 6502 collection period, or the § 6511 refund period for tax already paid.
Will the IRS contact my spouse or former spouse?
Yes. Publication 971 says the law requires it, with no exceptions. The IRS will not disclose the requester’s current name, address, phone numbers, employer, income or assets.
Can the IRS levy while an innocent spouse request is pending?
Generally no. Section 6015(e)(1)(B) bars levy until the 90-day Tax Court window closes or a Tax Court decision is final, with limited exceptions. Interest and penalties continue to accrue.
Does relief cover a balance that was reported but not paid?
Only equitable relief under § 6015(f) covers unpaid tax, meaning tax properly shown on the return but not paid. Innocent spouse relief and separation of liability apply to understated tax.
How is injured spouse relief different?
Injured spouse relief (Form 8379) recovers a share of a joint refund taken for the other spouse’s debts. Innocent spouse relief (Form 8857) addresses liability for the joint tax.
Questions about relief from joint tax liability?
A free, confidential evaluation can go over the joint return years at issue.
Ray Neu
Ray Neu is the publisher of IRSAttorneys.net. A former law enforcement officer with a background in criminal justice and digital publishing, he oversees editorial direction, partnership standards, and compliance review for the site. He is not an attorney and does not provide legal advice; all tax law content is sourced and reviewed against the standards documented on the Editorial Team & Standards page.
Sources
- IRS: Innocent spouse relief
- IRS: Separation of liability relief
- IRS: Equitable relief
- IRS: Appeals, innocent spouse
- IRS: About Form 8857
- IRS: Instructions for Form 8857
- IRS Form 8857 (PDF)
- IRS Publication 971
- IRS: Rev. Proc. 2013-34 (IRB 2013-43)
- IRS: Time IRS can collect tax
- IRS Publication 594 (PDF)
- IRS Form 12153 (PDF)
- IRS: About Form 8379
- 26 U.S.C. § 6013
- 26 U.S.C. § 6015
- 26 U.S.C. § 66
- 26 U.S.C. § 6330
- 26 U.S.C. § 6502
- 26 U.S.C. § 6511
- 26 U.S.C. § 7345
- 26 U.S.C. § 7525
- 26 CFR § 1.6015-5
- Tax Court Rule 325 (PDF)
- Tax Court Rule 200 (PDF)
IRS Circular 230 Disclosure: To ensure compliance with Treasury Department rules governing tax practice, any tax information contained on this website was not written and is not intended to be used, and cannot be used, for the purpose of avoiding any federal tax penalty. You should consult a licensed tax professional regarding your individual situation.
Results described on this website are not a guarantee, warranty, or prediction of the outcome of any tax matter. Every situation is different. Prior results do not guarantee a similar outcome. Article content reflects general information about federal tax procedure as of the last reviewed date and may not reflect subsequent changes in IRS policy, regulations, or case law.