Form 8857, Part by Part: How to Request Innocent Spouse Relief

Form 8857 looks like a questionnaire. It is really your case. Treasury Regulation 1.6015-5(a) makes it the way you elect innocent spouse relief or separation of liability and request equitable relief. And if the IRS says no and you go to the Tax Court, section 6015(e)(7) generally limits the court to the administrative record plus newly discovered or previously unavailable evidence. The form itself warns you of this on page one.

So treat it like what it is. Here is how the current version, Form 8857 (Rev. June 2021), is organized and how to approach each part.

Before you start

Three threshold points.

Do not file it with your tax return. The form and its instructions say so directly. It goes to a separate IRS address or fax number, discussed below.

Do not wait for perfect documents. The instructions say you must generally file no later than two years after the first IRS attempt to collect the tax from you, and they tell you not to delay filing because you do not have all the required documentation. See the guide to the two-year deadline.

Do not file too early. Treasury Regulation 1.6015-5(b)(5) says the IRS will not consider a premature claim, meaning one filed for a year before you have received a notification of an audit or a letter or notice indicating there may be an outstanding liability for that year.

Part I: Should you file this form?

Line 1 asks whether you filed a joint return and believe your spouse should be solely responsible for an erroneous item or underpayment, or whether you lived in a community property state, did not file jointly, and should not be responsible for tax on an item of community income.

Line 2 is a screening question for a different form. It asks whether the IRS took your share of a joint refund to pay your spouse's past-due child support, spousal support, federal nontax debt, or federal or state taxes. That is injured spouse relief, which uses Form 8379, not Form 8857. The instructions are clear that you cannot request injured spouse relief on Form 8857. Some people need both. See the guide comparing injured spouse and innocent spouse relief.

Line 3 lists the tax years. The form has six blanks. Get the year right: the form's own example says that if the IRS used your 2020 refund to pay a 2018 joint liability, you enter 2018, not 2020.

Part II: About you and the other spouse

Line 5 is your current name and contact information. There is a checkbox that tells the IRS to send all mail, including legal notices, to this address. If you do not check it, the instructions say only the initial correspondence goes there and everything else goes to the address in IRS records. If you have moved, check the box.

Line 6 identifies the spouse for those years. The form says to file a separate Form 8857 for tax years involving different spouses.

Line 7 asks your current marital status and requires attachments: the entire divorce decree, the entire separation agreement, or the death certificate and will. The form adds a note worth reading twice: a divorce decree stating your former spouse must pay all taxes does not necessarily mean you qualify for relief.

Lines 8 and 9 ask about your education and any mental or physical health problem when the returns were filed or now. Both feed directly into the IRS factors. Attach documentation of health problems.

Line 10 asks whether there is information you are afraid to provide on the form but are willing to discuss. Answer it honestly.

Part III: Your involvement with finances and returns

This is the heart of the form. Lines 11 through 19 ask:

• Whether you intended to file a joint return. If your signature was forged or you signed under duress, the instructions say to explain here, because that can mean there was no valid joint return at all.
• Your involvement in preparing the returns and whether you reviewed them.
• What you knew about your spouse's income, by type and amount, and why you did not know about any income you missed.
• What you knew about missing or incorrect information and whether you asked about it.
• If there was a balance due, when and how you thought it would be paid.
• Any financial problems when the returns were filed, such as bankruptcy or unpaid bills.
• Your role in household finances, joint accounts, and what you knew about your spouse's separate accounts.
• Large purchases or expenses during the years at issue.
• Any assets your spouse transferred to you, with dates and values.

Each of these lines maps to a legal test. Lines 13 and 14 go to knowledge. Line 15 goes to the underpayment knowledge test. Line 16 goes to whether it was reasonable to expect payment. Line 18 goes to significant benefit. Line 19 goes to disqualified assets. Write your answers with that in mind. Be specific: amounts, dates, account names, who said what. Attach pages if you need room.

Part IV: Your current financial situation

Lines 20 through 22 ask about your assets, how many people you support, and your household's average monthly income and expenses. This is the economic hardship factor. The guide to economic hardship explains how the IRS uses these numbers. Make sure the totals are accurate and supported.

Part V: Domestic violence or abuse

Part V is optional and applies if you or a family member were a victim of abuse or domestic violence by the other spouse. It asks you to describe the abuse and how it affected your ability to question the return or the payment of tax. It lists examples of documentation. The guide to abuse and financial control explains why this part can change the outcome.

Parts VI and VII: Anything else, and refunds

Line 24 lets you add anything else that bears on whether it would be unfair to hold you liable. Use it to tell the story in order.

Line 25 is a checkbox for a refund. The instructions say you must indicate that you want a refund of payments you made for the IRS to consider whether you are entitled to it. If you paid anything, check it. The guide to innocent spouse refunds explains the limits.

Signing and sending

Sign and date the form. The instructions say an unsigned form will be returned. A paid preparer must sign as well.

The June 2021 instructions list a Covington, Kentucky post office box for U.S. Postal Service mail, a separate Florence, Kentucky street address for private delivery services, and a fax number. Confirm the current addresses at IRS.gov/Form8857 before you send. The instructions also say to send the form there even if you are already dealing with an IRS employee in an examination, appeal or collection matter.

Keep a complete copy and proof of when you sent it.

If you have a notice of deficiency

Here is a timing trap. The instructions say that if you received an IRS notice of deficiency, you should also file a Tax Court petition before the 90-day period ends and raise innocent spouse relief as a defense, because the time to petition is not extended while the IRS considers your Form 8857.

The one-shot rule

Treasury Regulation 1.6015-5(c) says you are entitled to only one final administrative determination of relief for a given assessment, with a narrow exception for a second separation of liability election when you did not meet the marital status test the first time. That is one more reason to get the form right the first time.

A final review before you mail it

Read every answer as if you were the IRS employee deciding the case, and then as if you were your former spouse looking for something to dispute. Fix anything vague. Attach the documents you referred to. Make sure the tax years on line 3 are right, line 25 is checked if you paid anything, and the form is signed and dated.