Yes. You may file Form 8857, Request for Innocent Spouse Relief, if you lived in a community property state and believe tax related to your spouse’s or former spouse’s income shouldn’t be your responsibility.
The type of relief that may apply depends mainly on whether you filed a joint return or a separate return:
- If you filed jointly, you may qualify for innocent spouse relief, separation of liability relief, or equitable relief.
- If you didn’t file jointly, you may qualify for relief from tax related to an item of community income.
The IRS uses the information on Form 8857 and any supporting documents to decide whether relief applies. Relief may cover tax, penalties, and interest.
Which States Have Community Property Laws?
The nine community property states are:
- Arizona
- California
- Idaho
- Louisiana
- Nevada
- New Mexico
- Texas
- Washington
- Wisconsin
Community property rules vary by state. In general, spouses who file separate federal returns may each be required to report one-half of their community income, along with all of their separate income. State law determines whether a particular item is community or separate property.
What If We Filed a Joint Return?
When spouses file a joint return, both are generally responsible for the entire tax liability. This is called joint and several liability.
The IRS may collect the full amount from either spouse, even if:
- The spouses later divorce
- A divorce decree says one spouse must pay the tax
- One spouse earned all or most of the income
- The additional tax resulted from one spouse’s income, deduction, credit, or incorrect information
Community property allocation rules don’t change this joint responsibility. However, the requesting spouse may be able to reduce or eliminate responsibility by filing Form 8857.
Innocent spouse relief
Innocent spouse relief may apply when:
- You filed a joint return.
- The return understated the tax because of an incorrect item belonging to your spouse or former spouse.
- When you signed the return, you didn’t know and had no reason to know about the error.
- Based on all the facts and circumstances, it would be unfair to hold you responsible.
An understatement can result from unreported income, an incorrect deduction or credit, or an incorrect value assigned to property or another asset.
Separation of liability relief
Separation of liability relief may divide an understated tax between you and your spouse or former spouse.
This relief may be available if you’re divorced, legally separated, widowed, or haven’t lived in the same household as your spouse during the required period. It applies to understated tax, not generally to tax that was correctly reported but left unpaid.
Equitable relief
Equitable relief may be available when you don’t qualify for the other types of relief and, after considering all the facts, it would be unfair to hold you responsible.
Unlike the other primary forms of joint-return relief, equitable relief can potentially apply to:
- Tax that was understated on a joint return
- Tax that was reported correctly but wasn’t paid
- Certain tax assigned to you only because of community property laws
The IRS considers factors such as marital status, financial hardship, knowledge of the tax issue, legal obligations under a divorce agreement, compliance with later tax filing requirements, and whether abuse or financial control affected the situation.
When you file Form 8857, you don’t have to identify every possible form of spouse relief correctly. The IRS generally considers the types of relief for which the facts indicate you may qualify.
What If We Didn’t File a Joint Return?
If you were married, lived in a community property state, and filed separately, you may request relief from tax related to an item of community income.
This relief is sometimes informally grouped with innocent spouse relief, but it arises under a different rule from the relief available for a joint return. Community property relief generally involves spouses who filed separate returns or didn’t file returns, while traditional innocent spouse relief generally concerns joint-return liability.
You may qualify if all the following are true:
- You didn’t file a joint return for the tax year.
- You didn’t include an item of community income in your gross income.
- Under community property law, the income item belonged to your spouse or former spouse.
- You didn’t know and had no reason to know about the income.
- Considering all the facts and circumstances, it would be unfair to include that income in your taxable income.
The IRS may also consider equitable relief if you don’t meet every requirement for the regular community income exception but holding you responsible would still be unfair.
What Types of Community Income May Be Involved?
Depending on state law and the couple’s circumstances, community income may include:
- Wages, salaries, or other compensation earned by a spouse
- Income from a spouse’s business or self-employment activity
- A spouse’s distributive share of partnership income
- Interest, dividends, rents, or other investment income
- Income connected with property treated as community property
- Other income allocated between spouses under applicable community property law
The original article listed income from a spouse’s separate property as an example of community income. That statement is too broad. Income from separate property may be separate or community income depending on the law of the particular state. The taxpayer should apply the rules for the state where the spouses were domiciled.
Do I Need Form 8958?
Form 8958, Allocation of Tax Amounts Between Certain Individuals in Community Property States, is generally used to show how income, deductions, credits, and certain taxes are allocated between spouses or registered domestic partners filing separate federal returns.
If you’re filing separately in a community property state:
- Complete the federal return using the community property rules that apply to your situation.
- Allocate the applicable income, adjustments, deductions, credits, and tax amounts on Form 8958.
- Include any adjustment resulting from the community property relief you’re claiming.
- Attach Form 8958 to the return when required.
Form 8958 and Form 8857 have different jobs. Form 8958 explains how tax items are allocated on a return. Form 8857 asks the IRS to relieve you of responsibility for certain tax.
If you can’t obtain your spouse’s records, use the information reasonably available to you and review the form instructions carefully. Don’t guess when reliable records can be obtained from Forms W-2, Forms 1099, account statements, prior returns, or IRS wage and income transcripts.
When Should I File Form 8857?
File Form 8857 as soon as you become aware of a tax liability that you believe should be your spouse’s or former spouse’s responsibility. The correct deadline depends on the type of relief and the collection or assessment activity involved.
For relief from liability for an item of community income, the request generally must be filed no later than six months before the IRS assessment limitation period expires for the tax year. If the IRS begins an examination during that six-month period, the taxpayer generally has 30 days from the date of the IRS’s initial contact letter to request relief.
Other innocent spouse deadlines may depend on when the IRS first begins collection activity. Equitable relief follows different timing rules. Because missing a deadline may affect eligibility, taxpayers should respond promptly to any IRS notice and use the current Form 8857 instructions for the year in which the request is submitted.
How Do I Complete Form 8857?
Provide complete and accurate information about:
- The tax years for which you’re requesting relief
- Your current and former marital status
- When you and your spouse lived together
- Your education and involvement in household finances
- What you knew about the income, deductions, payments, or unpaid tax
- Any financial hardship you may face
- Any abuse, coercion, or financial control that affected your knowledge or ability to challenge the return
- The documents supporting your request
Attach copies of records that help explain the situation. These may include bank statements, tax notices, divorce documents, separation agreements, financial records, correspondence, or written explanations.
Include all information you want the IRS to consider. If the case later reaches the Tax Court, the court’s review may be limited to the IRS administrative record, newly discovered information, and information that was previously unavailable.
Program Entry
- Federal Section
- Miscellaneous Forms
- Request for Innocent Spouse Relief (Form 8857)
The software can help you complete the form, but the IRS requires Form 8857 to be submitted separately. Don’t attach it to the federal income tax return.
Can I E-file Form 8857?
No. Don’t e-file Form 8857 with your tax return, attach it to the return, or send it directly to the Tax Court.
You may mail or fax the completed form to the IRS. Keep a complete copy of the form, all attachments, and proof of submission with your records.
Where Do I Mail or Fax Form 8857?
U.S. Postal Service
Internal Revenue Service
P.O. Box 120053
Covington, KY 41012
P.O. Box 120053
Covington, KY 41012
Private delivery service
Internal Revenue Service
7940 Kentucky Drive, Stop 840A
Florence, KY 41042
7940 Kentucky Drive, Stop 840A
Florence, KY 41042
The IRS changed the private-delivery address effective May 6, 2024. The original article’s reference to Stop 840F is outdated; the current location is Stop 840A.
Fax
855-233-8558
Before sending the form, check the latest IRS filing instructions. Filing addresses and submission details can change after a printed form or publication is released.
What Happens After I File Form 8857?
The IRS will review the request and may ask for more information. Continue filing required returns and paying current taxes while the request is under review.
Federal law requires the IRS to notify your spouse or former spouse that you requested relief and give that person an opportunity to participate. This requirement generally applies even when the request involves domestic abuse.
The IRS generally won’t disclose your current:
- Name
- Address
- Phone number
- Employer information
Even so, documents submitted during the case could indirectly reveal personal details. If safety is a concern, carefully review attachments, remove unnecessary personal information, and consider getting help from a qualified tax professional, attorney, or Low Income Taxpayer Clinic. The IRS considers abuse and financial control when evaluating equitable relief.
The original article says the review may take “up to six months or longer.” Processing times can vary, so it’s better not to promise a specific decision date. Respond promptly if the IRS asks for additional documents.
Is Innocent Spouse Relief the Same as Injured Spouse Relief?
No. These are separate forms and remedies:
- Form 8857 asks for relief from a joint or community-property tax liability.
- Form 8379, Injured Spouse Allocation, is generally used when a joint refund was or may be applied to a debt owed only by the other spouse.
Examples of the other spouse’s debts may include past-due federal or state tax, child support, or certain federal nontax debts. Publication 971, Innocent Spouse Relief specifically distinguishes innocent spouse relief from injured spouse relief.
The Bottom Line
You can file Form 8857 while living in a community property state. If you filed jointly, the IRS may consider innocent spouse relief, separation of liability relief, or equitable relief. If you filed separately, you may qualify for relief from tax attributable to your spouse’s community income.
Community property cases can be complex because federal relief rules interact with state property law. File promptly, provide complete supporting records, and use the current Form 8857 instructions and Publication 971, Innocent Spouse Relief when preparing the request.