The Collection Freeze: What the IRS Can and Cannot Do While Your Innocent Spouse Claim Is Pending

One of the most practical reasons to file for innocent spouse relief early is that filing changes what the IRS can do to you. A pending request triggers a statutory restriction on levies. It is not a full stop on everything, and it comes with a cost to the collection clock. But for a spouse facing a wage levy or a bank levy over a former spouse's tax debt, it can be the difference between a paycheck and no paycheck.

The statute

Internal Revenue Code section 6015(e)(1)(B)(i) says that, except as otherwise provided in section 6851 or 6861, no levy or proceeding in court shall be made, begun, or prosecuted against the individual making an election under section 6015(b) or (c), or requesting equitable relief under section 6015(f), for collection of any assessment to which the election or request relates, until the close of the 90th day for filing a Tax Court petition, or, if a petition is filed, until the Tax Court's decision becomes final.

Sections 6851 and 6861 are the termination and jeopardy assessment provisions. Outside those unusual situations, the restriction applies.

Section 6015(e)(1)(B)(ii) adds teeth: a levy or proceeding begun in violation of the restriction may be enjoined by a proceeding in the proper court, including the Tax Court, notwithstanding the Anti-Injunction Act in section 7421(a). The Tax Court's injunction power is limited to cases where a timely petition has been filed and to the assessment covered by the request.

When the restriction starts and ends

The Internal Revenue Manual, at IRM 25.15.1.7, describes the period: the IRS is prohibited from taking these collection actions from the time the claim is filed under section 6015(b), (c) or (f) until:

• you sign a waiver of the restrictions on Form 870-IS, Waiver of Collection Restrictions in Innocent Spouse Cases;
• the 90-day period for petitioning the Tax Court expires; or
• if you petition the Tax Court, the Tax Court's decision becomes final.

The Form 8857 instructions put it simply: if you request relief for any tax year, the IRS cannot collect from you for that year while your request is pending, and the request is generally considered pending from the date the IRS receives Form 8857 until it is resolved, including while the Tax Court considers it.

If you appeal a Tax Court loss

Section 6015(e)(1)(B)(i) says rules similar to section 7485 apply. IRM 25.15.1.7 explains the effect: if you appeal the Tax Court decision, the IRS may resume collection when you file the notice of appeal, unless you file an appeal bond. The same IRM section notes that, as a matter of policy, the IRS generally does not begin collection after a notice of appeal unless the collection statute or collection itself would be jeopardized by the delay.

What the restriction covers, and what it does not

Read the statute carefully. It restricts levies and court proceedings to collect the covered assessment from the requesting spouse. That has several consequences.

It covers you, not your former spouse. IRM 25.15.1.7 says collection actions against the nonrequesting spouse during this period are not prohibited and should continue. Your former spouse's wages and accounts remain fair game.

It covers the years and assessments in your request. If you owe on a separate return for a different year, the restriction does not protect that liability.

It speaks to levies and court proceedings. The statute does not mention the filing of a notice of federal tax lien. Do not assume your request prevents one.

It does not stop interest and penalties. The Form 8857 instructions say interest and penalties continue to accrue while your request is pending. If you lose, the balance will be larger than when you started.

The cost: the collection clock stops too

There is a trade-off built into the statute. Section 6015(e)(2) suspends the running of the section 6502 collection period for the time the IRS is prohibited from collecting by levy or court proceeding, plus 60 days. If you sign a waiver, it suspends the period from the date the claim was filed until 60 days after the waiver is filed.

The Form 8857 instructions say the 10-year collection period will be increased by the time your request was pending plus 60 days. IRM 25.15.1.8 adds that the IRS treats any claim filed on or after December 20, 2006 as suspending the collection statute from the date the claim was received, regardless of which revision of Form 8857 you used.

That matters if your liability is close to its collection statute expiration date. A request filed near the end of the collection period gives the IRS more time if relief is denied. That is not a reason to avoid filing a strong claim. It is a reason to evaluate the claim honestly before filing a weak one.

The waiver: Form 870-IS

Section 6015(e)(5) allows a requesting spouse who agrees with the IRS's determination to waive the collection restrictions in writing at any time, whether or not a final determination has been mailed. The IRS form is Form 870-IS.

Why would anyone waive protection from collection? Usually because the IRS has granted partial relief, you agree with it, and you want to resolve the remaining balance now, for example through a payment arrangement, rather than letting interest run through the 90-day period. A waiver also changes the collection statute suspension under section 6015(e)(2)(B). Do not sign one without understanding exactly what you are agreeing to.

How this fits with a levy notice

If you have already received a notice of intent to levy, you may have two tools at once: a collection due process hearing under section 6330, where you can raise appropriate spousal defenses, and the section 6015(e)(1)(B) restriction triggered by filing your request. The guide to raising innocent spouse in a CDP hearing or deficiency case explains how those interact.

If a levy has already been served, file Form 8857 immediately and raise it with the IRS employee handling your account. If the IRS levies in violation of the restriction, section 6015(e)(1)(B)(ii) authorizes an injunction.

What I tell clients to watch

1. Confirm the IRS received your request. Keep proof of mailing or fax confirmation.
2. Watch your transcripts. IRM 25.15.1.8 refers to transaction code 971 and 972 indicators that control the collection prohibition. Your account transcript should show that the claim was recorded.
3. Do not ignore other years. The restriction is year-specific.
4. Keep current on new taxes. Compliance is a factor in equitable relief, and a new balance creates new collection exposure.
5. Calendar the end of the protection. The restriction ends 90 days after the final determination if you do not petition. Plan for what happens next.

What happens when the freeze ends

The restriction is temporary. Once it ends, the IRS can collect whatever liability remains assigned to you.

If relief is granted in full, the covered liability is no longer yours, and collection against you on that assessment should stop for good. Your former spouse remains liable.

If relief is granted in part, the IRS can collect the portion that remains yours once the restriction ends. That is the point to look at collection options for the remainder, such as an installment agreement.

If relief is denied, you can petition the Tax Court within 90 days of the final determination, and the restriction continues while the case is pending. If you do not petition, collection can resume after the 90 days, and the collection statute will have been extended by the pending period plus 60 days.

Plan for each outcome before it arrives. The worst position is to be surprised by a levy the week after the 90-day window closes.