What is Innocent Spouse Relief?

If you have received notice of an additional tax liability that you believe only your spouse or ex-spouse should be responsible for, the experienced attorneys at Wiggam & Geer can help defend your rights and assist you in claiming innocent spouse relief for the debt.

Saying “I do” doesn’t necessarily bind you to paying your current or former spouse’s unpaid personal or business taxes. If you filed a joint return but your spouse made errors or omitted information that has led to additional taxes, you might be able to claim innocent spouse relief.

What Qualifies for Innocent Spouse Relief?

If you and your spouse filed a joint tax return, the IRS considers each of you jointly and severally liable for any tax debt. This means that each taxpayer is legally responsible for the entire debt. Joint and several liability applies even if:

  • only one spouse earned all the income
  • you have a divorce decree that states your ex is responsible for tax debt from past joint returns

If your spouse or former spouse failed to report or misreported income, or claimed improper credits or deductions of which you had no knowledge, then you can apply for innocent spouse relief from the IRS. Claiming innocent spouse relief can relieve you of additional taxes, plus penalties and interest. The IRS has specific innocent spouse rules, which begin with a timely filing of Form 8857.

What Is the Innocent Spouse Form?

From 8857, Request for Innocent Spouse Relief, is the form to file if you believe your current or former spouse should be solely responsible for any tax debt. If multiple returns are involved, you do not have to file more than one Form 8857.

While the seven-page form includes numerous questions about your situation, including your involvement in the finances and return preparation as well as why you should be granted relief, you can also include a letter stating your case and attach extra pages further detailing any answers. The form details any required documents to include with your filing, such as a divorce decree or separation agreement. You should always write your name and social security number on any attachments.

Remember, when it comes to an injured spouse vs. innocent spouse, these are totally different. An injured spouse claim Is made on Form 8379 and refers to getting back your share of a refund that has been used to offset your spouse’s past-due taxes.

How Long Do I Have to File Innocent Spouse Relief?

You should file Form 8857:

  • As soon as you have knowledge of your spouse’s omission or error and believe that only your spouse should be responsible for the resultant tax liability
  • Even if you do not have all the required documentation on hand
  • Within two years from the date the IRS first attempted to collect the unpaid taxes

An IRS attempt is considered a notice alerting you to an additional tax liability or other communication that the agency is examining your return and proposing an increase in tax liability. 

What Are Separation of Liability and Equitable Relief?

If the IRS denies your request for innocent spouse relief, you can seek:

  • Separation of liability relief — this applies to taxpayers who are no longer married, legally separated, or have been living apart for 12 months prior to filing a claim.
  • Equitable relief – this is available if you do not qualify for either innocent spouse or separation of liability relief. In this case, the IRS considers the facts and circumstances and might decide it is unfair to hold you liable for an underpayment or understatement of tax.

In both cases, you must first file Form 8857. 

If you have been assessed an extra tax liability that is the result of omission or error by your spouse or ex-spouse, it’s best to act quickly and hire an experienced tax attorney as soon as possible. Our team of experienced tax attorneys can help you evaluate all your options and represent you. Give us a call today at (404) 233-9800 to get started.

Book a Free Consultation

Phone 1 (404) 233-9800 today or fill out the form below, and we will contact you within two business days to schedule your initial consultation.


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