How Long You Have to Ask for Equitable Relief

For years, the IRS applied a two-year deadline to every kind of innocent spouse relief, including equitable relief. That is no longer the rule. Congress wrote the equitable relief deadline into the statute in 2019, and it is far more generous. But generous is not the same as unlimited. There are two deadlines, and which one applies depends on whether you have paid.

The statute

Internal Revenue Code section 6015(f)(2) says a request for equitable relief may be made with respect to any portion of any liability that:

• has not been paid, provided the request is made before the expiration of the applicable period of limitation under section 6502; or
• has been paid, provided the request is made during the period in which you could submit a timely claim for refund or credit of that payment.

The amendment that added this language applies to petitions or requests filed or pending on or after July 1, 2019, according to the statutory effective date note.

Revenue Procedure 2013-34, section 4.01(3), sets out the same two-part timing rule as a threshold condition for equitable relief.

Deadline one: unpaid tax and the collection statute

For a balance you have not paid, the question is whether the IRS can still collect it. Section 6502 generally gives the IRS 10 years after assessment to collect. That date is called the collection statute expiration date, or CSED. Revenue Procedure 2013-34 says the request for relief from an unpaid liability must be made on or before the CSED, and notes that the 10-year period may be extended by other provisions of the Code.

So the practical deadline is the CSED for the assessment you want relief from. If the IRS can still collect it, you can still ask.

Finding your CSED

Each assessment has its own CSED. An original assessment from the return and a later assessment from an audit can have different dates. Many events can suspend or extend the period, which is why I never guess. Pull the account transcripts, identify each assessment date, and account for suspension events. For a deeper explanation of how the CSED works, see this guide to the collection statute of limitations.

Your request suspends the CSED

Filing for innocent spouse relief affects the CSED itself. Under section 6015(e)(1)(B), the IRS generally cannot levy or bring a court proceeding to collect the covered assessment while your request is pending and through the Tax Court process. Section 6015(e)(2) then suspends the section 6502 collection period for the time collection is prohibited plus 60 days.

The Form 8857 instructions put it in plain terms: the 10-year period will be increased by the amount of time your request was pending plus 60 days. That is the trade-off. Your request protects you from levy while it is pending, but if you lose, the IRS has more time to collect.

Deadline two: amounts you paid and the refund period

If you want money back, the deadline is the refund claim period under section 6511. Revenue Procedure 2013-34 describes it as generally three years from the time the return was filed or two years from the time the tax was paid, whichever is later. The Form 8857 instructions say the same and add that you may have more time if you live in a federally declared disaster area or were physically or mentally unable to manage your financial affairs.

The amount you can recover is limited too

Meeting the deadline is not the end of the analysis. The Form 8857 instructions include a lookback limit on how much can be refunded:

• If you file Form 8857 within three years after filing your return, the refund cannot exceed the part of the tax paid within the three years, plus any extension of time for filing the return, before you filed Form 8857.
• If you file after that three-year period but within two years from when you paid the tax, the refund cannot exceed the tax you paid within the two years immediately before you filed Form 8857.

The guide to innocent spouse refunds explains which payments are refundable at all. Payments made with the joint return, joint payments, and payments your spouse made are not.

When you have both a balance and payments

Many people paid part of a joint liability and still owe the rest. The Form 8857 instructions address this: if you are seeking a refund of amounts you paid and relief from a balance due above what you paid, the refund period applies to the payments and the collection period applies to the unpaid balance.

That can produce a split result. Payments you made long ago may be outside the refund period and unrecoverable, while the unpaid balance is still eligible for relief. File as soon as you can so that more of your payments stay within the window.

The community property exception

One different deadline applies in community property states. If you did not file a joint return and you are requesting relief under the first sentence of section 66(c) for tax on an item of community income, the Form 8857 instructions say you must file no later than six months before the period of limitations on assessment expires against your spouse for that year, or within 30 days after the IRS's initial contact letter if an examination of your return begins during that six-month window. Equitable relief under the second sentence of section 66(c) follows the general equitable relief rules instead. See the guide to community property and spousal relief.

Three timelines, side by side

Here is how the deadlines line up for a typical case.

1. Innocent spouse relief and separation of liability. Two years from the first collection activity against you, under section 6015(b)(1)(E) and section 6015(c)(3)(B).
2. Equitable relief from an unpaid balance. Any time before the collection statute expiration date for that assessment, under section 6015(f)(2)(A).
3. Equitable relief with a refund of payments. Within the refund claim period for each payment, under section 6015(f)(2)(B), with the refund amount limited by the lookback rules.

One Form 8857 can request all three. The IRS considers (b) and (c) first, and equitable relief only to the extent the first two are unavailable, under Treasury Regulation 1.6015-1(a)(2).

An example

Suppose a joint 2019 return was filed on time in 2020 and the IRS assessed additional tax after an audit in 2022. The IRS mailed you a notice of intent to levy in 2023 and you did nothing. In 2026 you file Form 8857.

Your elections under (b) and (c) are late, because more than two years passed after the 2023 levy notice. But your request for equitable relief from the unpaid balance is timely if the collection statute on the 2022 assessment is still open, which it generally would be under the 10-year rule absent unusual facts. Any payments you made in the lookback window may be refundable if relief is granted. Payments outside it are not.

Those dates are illustrative only. Real cases turn on the exact dates on your transcripts.

Why waiting is still a bad idea

The equitable relief deadline is long. That does not make delay free.

Interest keeps running. The Form 8857 instructions note that interest and penalties continue to accrue even while a request is pending. A balance you do not address grows.

Levies can happen first. Until you file, the section 6015(e)(1)(B) levy restriction does not protect you. The IRS can take your wages or bank account in the meantime.

Refund windows close. Every month that passes, older payments can slip outside the refund lookback.

Evidence gets stale. Bank records age out. Witnesses move. Memories blur. Equitable relief cases are fact cases, and the facts are easier to prove sooner.

You may still be inside the two-year window for (b) or (c). If you are, you want those elections preserved too. Equitable relief is only available when (b) and (c) are not. File one Form 8857 that requests all three.