What is innocent spouse relief and how do I qualify?

What happens in a separation or divorce of the jointly filing taxpayers? Nothing. Both still owe the IRS–and the IRS pursues both spouses to collect the back taxes.

Even a divorce and a court decree for one spouse to pay the outstanding tax bill will not be enough to keep the IRS from pursuing both taxpayers for the back taxes. If the taxpayers don’t pay the bill or make arrangements to pay, the IRS can pursue collection on both parties. This includes potential wage garnishments or levies, tax liens, and potential passport restrictions for large tax bills.

Innocent spouse relief represents a potential halt to these collection activities for one of the parties to a joint tax debt. If you’re seeking innocent spouse relief, you would use IRS Form 8857 to ask the IRS to exempt you from all or part of the tax debt that originated with a joint return with your current or former spouse.

However, beware. The IRS takes a joint-filing election and joint liability seriously. In fact, in 2021, the IRS received 26,179 innocent spouse requests. The IRS fully allowed only 4,807 of these applications. The moral of the story: Many apply, but few are granted.

The general reason why most don’t qualify is that the acceptance of an innocent spouse request is fact-based, yet somewhat subjective. The rules are complicated, and there is no bright-line test for relief.

The 3 types of innocent spouse relief

Innocent spouse relief allows one of two taxpayers to be absolved of part, or all, of a joint federal tax debt, including taxes, penalties, and interest.

There are three types of innocent spouse relief:

Innocent spouse relief

By requesting innocent spouse relief, you can be relieved of responsibility for paying owed tax, interest, and penalties, if your spouse did something wrong on your tax return. To qualify, you must have not known or had reason to know about the error that led to tax due on the return. As a result, it would be unfair, based on the facts and circumstances, to hold the other spouse liable for the taxes.

As one can imagine, determining whether a person had a “reason to know” and determining “unfairness” can be quite subjective. For example, if the spouse received benefit from the tax return item (like unreported income on the return), the chances of getting relief diminish. Many court cases and IRS rulings expound on these determination criteria.

Relief by separation of liability

Under this type of relief, the IRS divides the understatement of tax (plus interest and penalties) on your joint return between you and your current or former spouse. Like innocent spouse relief, this relief starts with an additional tax assessment (resulting from an audit or underreporter inquiry). One spouse claims they had no knowledge of the error on the return. Again, facts and circumstances apply.

Spouses who are subject to domestic abuse may show that they could not challenge the filed return because they were afraid of retaliation by the other spouse. Requestors generally must be separated or divorced from their spouse to qualify for separation of liability.

Both the innocent spouse relief and the relief by separation of liability apply to additional tax assessments–like those resulting from an audit or underreporter inquiry (CP2000) after the return is filed. This type of relief applies to understatement of taxes from audits or other IRS return challenges, and to tax debt that came from a joint tax return.

Equitable relief

This type of relief may apply if you don’t qualify for innocent spouse relief or separation of liability. Equitable relief has many conditions to qualify: knowledge, domestic abuse, separation/divorce actions, benefit, health status when signing the return, and future tax compliance are all factors the IRS considers. Again, there is not a bright-line test here for qualification.

How does innocent spouse relief work?

To get relief from a joint liability, the requesting spouse must qualify, apply, and go through the innocent spouse investigation process. If the IRS denies the relief, the taxpayer can appeal the findings.

4 steps to relief:

1. Qualify. Review the factors for relief and select the appropriate type of relief. Keep in mind, if you select innocent spouse relief or relief by separation of liability and the IRS rejects your request, the IRS will automatically see whether equitable relief applies to your situation.  Understanding the rules and how to apply your facts is critical.
2. Apply. To request innocent spouse relief, you would file Form 8857, Request for Innocent Spouse Relief. This seven-page form requires detailed explanations and additional documents to support the facts presented in the application. 
3. Investigation. Send the application to the IRS innocent spouse unit in Covington, KY. The IRS examiner will look at the facts and circumstances of your case and probably request more information. The IRS will also involve the non-requesting spouse in its decision. The IRS may request information from the non-requesting spouse. The non-requesting spouse can also appeal any innocent spouse approval.
4. Appeal, if needed. IRS statistics show that it denies many innocent spouse requests. You can request an appeal and document your disagreement using Form 12509, Statement of Disagreement. If you can’t reach an agreement with IRS Appeals, you will have an opportunity to petition the decision to the U.S. Tax Court. This process commonly takes more than a year. Innocent spouse requestors should stay diligent in responding to the IRS. Not responding to a request for information will result in the IRS closing the request case.

If the IRS approves your request for relief, the IRS can collect only from your current or former spouse. That includes penalties, interest, and taxes directly related to improperly reported or omitted items on your joint return.

Other types of relief available to innocent spouses

In some circumstances, one spouse will sign both names on the return (or file it electronically without consent of the other spouse). In these cases, the spouse can claim that they did not file a return. This is not an innocent spouse request, but a statement that the taxpayer did not file the return. In these cases, the taxpayer must file their own return (if required).  It is important that the taxpayer not give “tacit consent” to their spouse to file a return on their behalf.  Like an innocent spouse request, this is a facts and circumstances test.

When to contact a tax expert

Generally, filing Form 8857 means that your tax situation has become significantly more complex than the average American taxpayer. If you’re unfamiliar with tax laws in this area and aren’t sure how to proceed, the Tax Pros at Jackson Hewitt’s Tax Resolution Service stand ready to assist you throughout this process.

Additionally, if you’ve already filed Form 8857 and the IRS denied your request, other options may still be available to you. To further explore these options and learn which may apply to your situation, schedule a free consultation by visiting Jackson Hewitt’s Tax Resolution page.

How Jackson Hewitt can help

Jackson Hewitt’s team has a wide variety of tools to manage tax issues. Whether simple or complex, our team is trained to work directly with the IRS and keep our clients updated throughout the process. Contact us to learn about our resolution process and see how committed Jackson Hewitt is to working hard for the hardest working.

About the Author

Jo Willetts, Director of Tax Resources at Jackson Hewitt, has more than 35 years of experience in the tax industry. As an Enrolled Agent, Jo has attained the highest level of certification for a tax professional. She began her career at Jackson Hewitt as a Tax Pro, working her way up to General Manager of a franchise store. In her current role, Jo provides expert knowledge company-wide to ensure that tax information distributed through all Jackson Hewitt channels is current and accurate.

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