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Tax Help FAQs: IRS Innocent Spouse

Who is an Innocent Spouse?

Generally, when a joint IRS tax return is filed, each spouse is equally liable for all the tax, penalties, and interest for the particular joint tax year. This means the entire amount of tax, penalties, and interest may be collected from either spouse, even if only one spouse earned all of the income.

If certain legal requirements are met, a spouse may be fully or partially relieved of the joint IRS tax, penalties, and interest owed. Six categories of relief are available:

• Complete or partial innocent spouse relief.
• Relief by separate allocation of liability.
• Equitable relief.
• Relief from community income.
• Relief by court order.
• Relief from the tax due amount on return(s) that have been filed.
  
  Will I receive a refund if I am granted relief?
  
  If relief is granted, under certain circumstances, a refund of amounts that you have paid may be allowed.
  
  Do I have to be divorced to qualify for Innocent Spouse relief?
  
  Not necessarily. For an allocation of liabilities between joint filers, you must be divorced, legally separated from the other party to the joint return, or not living together for the 12-months prior to submitting your request for relief. For Equitable Relief, the fact that a requesting spouse is divorced or legally separated is regarded as a positive factor in determining whether to grant relief.
  
  Under what conditions is innocent spouse relief granted?
  
  To qualify for innocent spouse relief, you must meet all of the following conditions:
  
  
• You filed a valid, joint tax return.
• You are able to prove that when you signed the return, you did not know, or have reason to believe, the liability would not be paid when the tax return was filed, or, at the time you signed the return, you did not have knowledge of the items that resulted in an audit assessment of additional tax.
• The liability is attributable to your spouse.
• Taking into account all of the facts and circumstances, it would be unfair to hold you liable for the tax.
  
  Under what conditions is relief by separate allocation of liability granted?
  
  Under this type of relief, we determine which spouse is responsible for the tax, penalties, and interest resulting from an audit of a joint return, and assign the liabilities to the responsible spouse. To qualify for this type of relief, you must have filed a joint return and show all of the following:
  
  
• You were divorced, legally separated, or lived apart for 12 months prior to making your request for relief.
• The tax resulting from the audit is attributable to your spouse.
• You had no knowledge of the item(s) that resulted in the tax.
• You did not receive a direct tax benefit.
• You made your request within the applicable statute of limitations, and not later than the date that is two years after the date the Franchise Tax Board has begun collection activities against you.
  
  What is joint and several liability?
  
  
• Many married taxpayers choose to file a joint tax return because of certain benefits this filing status allows.
• Both taxpayers are jointly and individually responsible for the tax and any interest or penalty due on the joint return even if they later divorce.
• This is true even if a divorce decree states that a former spouse will be responsible for any amounts due on previously filed joint returns.
• One spouse may be held responsible for all the tax due.
  
  

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  Introduction to Innocent Spouses
  
  Many married taxpayers choose to file a joint tax return because of certain benefits this filing status allows. Both taxpayers are jointly and individually responsible for the tax and any interest or penalty due on the joint return even if they later divorce. This is true even if a divorce decree states that a former spouse will be responsible for any amounts due on previously filed joint returns. One spouse may be held responsible for all the taxes due even if the other spouse earned all of the income.
  
  In some cases, a spouse will be relieved of the tax, interest, and penalties on a joint tax return. Three types of relief are available.
  
  
• Innocent spouse relief.
• Separation of liability.
• Equitable relief.
  
  This publication explains these types of relief, who may qualify for them, and how to get them. Each type of relief has different requirements. They are explained separately in different parts of this publication. Read each part to see if you qualify for that type of relief.
  
  Table 1 compares the rules for these three types of relief. You may also want to see Questions & Answers, near the end of this publication for a list of questions and answers about these types of relief.
  
  You are not required to figure the tax, interest, and penalties that qualify for relief. The IRS will figure these amounts after you file Form 8857, Request for Innocent Spouse Relief
  
  You can only qualify for equitable relief if you do not qualify for innocent spouse relief or relief by separation of liability.
  
  Married persons who file separate returns in community property states may also qualify for relief. See Community Property Laws, later.
  
  What this publication does not cover. This publication does not discuss filing an injured spouse claim. You are an injured spouse if your share of the overpayment shown on your joint return was, or is expected to be, applied against your spouse's past-due federal debts, state taxes, or child or spousal support payments. If you are an injured spouse, you may be entitled to receive a refund of your share of the overpayment. For more information, get Form 8379, Injured Spouse Claim and Allocation.