After You File Form 8857: The Innocent Spouse Process, Stage by Stage

You mailed the form. Now what? The waiting is hard, especially when you do not know what is happening on the other end. The innocent spouse process follows a defined sequence, and knowing it lets you prepare for each step instead of reacting to it.

Stage one: intake and completeness review

The Form 8857 instructions say the IRS will review your form for completeness and contact you if additional information is needed. Requests are handled by a centralized IRS innocent spouse operation; the Internal Revenue Manual at IRM 25.15.17 refers to the Cincinnati Centralized Innocent Spouse Operation.

Answer any IRS request for information promptly and completely. Remember the warning on page one of Form 8857: if you later go to the Tax Court, the court may be limited to what was in the administrative file, plus newly discovered or previously unavailable evidence. Section 6015(e)(7) of the Internal Revenue Code says the same. What you give the IRS now is what the court sees later.

Stage two: the IRS contacts your spouse or former spouse

This happens in every joint return case. The Form 8857 instructions say that by law the IRS must contact your spouse or former spouse, with no exceptions, even for victims of spousal abuse or domestic violence.

Treasury Regulation 1.6015-6(a) requires the IRS to send a notice to the nonrequesting spouse's last known address informing that person of your claim and giving an opportunity to submit information. Form 8857 says the other spouse can participate by completing a questionnaire about the years at issue. The regulation lists the kinds of information the IRS will consider from that person, including the legal status of your marriage, your knowledge of the items, your participation in the family finances, your education, any benefit you received, asset transfers, and any indication of fraud.

The other spouse does not have to respond. Many do not. But plan as though yours will, and as though the response will not be kind. The guide to the nonrequesting spouse's rights explains that side of the process.

What the IRS will not share

The instructions say the IRS will not disclose your personal information, such as your current name, address, phone numbers, or information about your employer, income or assets. Other information the IRS uses in its determination could be disclosed to the other spouse. Under Treasury Regulation 1.6015-6(a)(1), on request of either spouse, the IRS will share information submitted by the other spouse unless doing so would impair tax administration.

Stage three: the preliminary determination

The Form 8857 instructions say that once the IRS has all the information it needs, it generally sends a preliminary determination letter to you and to your spouse or former spouse. Treasury Regulation 1.6015-6(a)(2) requires the IRS to notify the nonrequesting spouse of both the preliminary and final determinations.

The preliminary determination can grant full relief, partial relief, or deny relief. Read it carefully. It will explain the reasons. Those reasons tell you exactly what the IRS thought was missing.

Stage four: appeals

Either spouse can challenge the preliminary determination by appealing to the IRS Independent Office of Appeals. The Form 8857 instructions describe this: if neither of you appeals, the IRS issues a final determination letter to both of you; if either or both of you appeal, Appeals issues the final determination letter after considering the appeal.

The Internal Revenue Manual's Appeals procedures for innocent spouse cases, IRM 8.7.12, explain that the requesting spouse may appeal a denial or partial denial, and the nonrequesting spouse may appeal to the extent relief is granted. That means a partial grant can draw appeals from both directions.

Your preliminary determination letter will state the deadline and instructions for appealing. Follow them exactly. An appeal is your chance to fix gaps in the record before the final determination, and to do it in a forum that is generally less formal than court.

Stage five: the final determination

The final determination letter is the IRS's official decision. It matters for two reasons.

It opens the Tax Court door. Under section 6015(e)(1)(A), you can petition the Tax Court after the IRS mails its final determination, and the petition must be filed no later than the 90th day after that mailing. The Form 8857 instructions warn that a late or missing petition means the Tax Court cannot review your request. See the guide to petitioning the Tax Court.

It is generally your one determination. Treasury Regulation 1.6015-5(c) says you are entitled to only one final administrative determination for a given assessment, except for a second separation of liability election after you meet the marital status requirement.

If six months pass with no answer

You do not have to wait indefinitely. Section 6015(e)(1)(A)(i)(II) lets you petition the Tax Court any time after six months from the date you filed your request, even if the IRS has not issued a final determination. The Form 8857 instructions say the same.

Whether to use that option is a strategic decision. Going to court early moves the case, but it also means the administrative record may be thinner than you want.

Reconsideration after a final denial

If you missed the Tax Court deadline, there is a narrow administrative safety valve. IRM 25.15.17 says the IRS will reconsider a final determination denying relief when the requesting spouse submits information not previously considered, as long as the collection statute expiration date or refund statute expiration date is still open.

But the same IRM section says a reconsideration request is not a qualifying request for relief under section 6015(b), (c) or (f), and the result is not a final determination subject to Tax Court review under section 6015(e). It is a second look, not a second case. Do not plan around it.

What happens to collection during all this

While the request is pending, section 6015(e)(1)(B) generally bars levy and court collection proceedings on the covered liability, through the Tax Court period. The Form 8857 instructions note that interest and penalties keep accruing, and that the collection period is extended by the time the request was pending plus 60 days. The guide to collection while a claim is pending covers what the IRS can and cannot do.

Mistakes I see during the process

Moving without telling the IRS. The final determination letter starts a 90-day clock. If it goes to an old address, you can lose your Tax Court rights without ever seeing the letter.

Treating the preliminary determination as final. It is not. If it is wrong, appeal it, and use the appeal to add what was missing.

Ignoring the other spouse's submission. If you can, ask the IRS for what your former spouse sent in. Under Treasury Regulation 1.6015-6(a)(1), the IRS will share it on request unless sharing would impair tax administration. You cannot rebut what you have not seen.

Going quiet. Unanswered IRS requests for information often lead to denials that are hard to undo, because the record the Tax Court may review is the record you built.

How long it takes

Neither the statute nor the Form 8857 instructions set a processing time. Cases with a responsive nonrequesting spouse, appeals, or missing documentation take longer. The six-month Tax Court option exists because Congress recognized that these cases can stall.

What you should be doing while you wait

• Keep a copy of everything you sent, with proof of the date.
• Calendar six months from the filing date.
• Respond to every IRS letter by its deadline.
• Keep filing and paying your current-year taxes. Compliance is one of the equitable relief factors.
• Keep your address current with the IRS, using the checkbox on Form 8857 line 5 or Form 8822, so you do not miss the final determination and its 90-day deadline.
• Collect additional documentation in case you need it on appeal.