Tax Relief Options
Innocent Spouse Relief
Key Takeaway
Innocent spouse relief is an IRS provision under IRC 6015 that can eliminate your liability for tax debt caused by a spouse or ex-spouse’s errors on a joint return. You generally must file Form 8857 within two years of the IRS’s first collection action, though equitable relief under IRC 6015(f) has no hard deadline. Call Brotman Law at (619) 378-3138 for a free intro call about protecting yourself from your spouse’s tax mistakes.
Joint Tax Liability Is Absolute — Unless You Qualify for Innocent Spouse Relief
When you sign a joint tax return, you agree to be responsible for the entire tax liability on that return — not just your share, but all of it. This is called “joint and several liability,” and it means the IRS can collect 100% of the tax debt from either spouse, regardless of who earned the income or who made the errors.
This rule creates devastating consequences when one spouse underreports income, claims fraudulent deductions, or fails to pay the tax due. The other spouse — who may have known nothing about the errors — is on the hook for the full amount, including penalties and interest. Divorce does not change this. A divorce decree that assigns the tax debt to one spouse does not bind the IRS. They will still pursue the “innocent” spouse.
Three Types of Relief Under IRC § 6015
Innocent Spouse Relief (IRC § 6015(b)) applies when your spouse (or former spouse) understated the tax due on a joint return, and you did not know and had no reason to know about the understatement. If granted, you are relieved of the tax, interest, and penalties attributable to the understatement. This type of relief applies to underpayments resulting from errors on the return itself.
Separation of Liability Relief (IRC § 6015(c)) allocates the understatement between you and your spouse based on who was responsible for which items. This relief is available only if you are divorced, legally separated, widowed, or have not lived with your spouse during the 12 months before filing the request. The allocation essentially treats each spouse as if they filed a separate return.
Equitable Relief (IRC § 6015(f)) is a catch-all provision for cases that do not qualify under the other two types. It applies to both understatements (errors on the return) and underpayments (correct return but unpaid tax). The IRS considers multiple factors, including whether you are divorced or separated, whether you would suffer economic hardship without relief, whether you knew or should have known about the issue, and whether the other spouse has a legal obligation to pay the debt.
The Two-Year Deadline — And the Exception for Equitable Relief
For innocent spouse relief under IRC § 6015(b) and separation of liability under § 6015(c), you must file Form 8857 (Request for Innocent Spouse Relief) within two years of the date the IRS first began collection activity against you. Missing this deadline bars you from these two types of relief permanently.
However, equitable relief under § 6015(f) does not have the same two-year deadline. Revenue Procedure 2013-34 eliminated the two-year time limit for equitable relief claims. This means that even if you missed the deadline for traditional innocent spouse relief or separation of liability, you may still qualify for equitable relief.
How We Build Innocent Spouse Cases
Innocent spouse cases are intensely factual. The IRS examines your knowledge, involvement in financial decisions, education level, health, whether you benefited from the understatement, and your current financial situation. They may interview you and your spouse separately. At Brotman Law, we prepare comprehensive packages with detailed statements, supporting documentation, and legal memoranda that address every factor the IRS considers. We have successfully obtained innocent spouse relief for clients facing tax debts ranging from $15,000 to over $2 million.
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Relief Options
Types of Innocent Spouse Relief We Pursue
Traditional Innocent Spouse Relief
We establish that you did not know and had no reason to know about understatements on joint returns caused by your spouse or ex-spouse.
Separation of Liability
For divorced, separated, or widowed taxpayers, we allocate the tax liability to the responsible spouse based on who was responsible for each item.
Equitable Relief
When other types of relief are unavailable, we pursue equitable relief by demonstrating that it would be unfair to hold you liable for the tax debt.
IRS Appeals Representation
If the IRS denies your Form 8857 request, we represent you before IRS Appeals for independent review of your case.
Tax Court Petitions
When administrative remedies fail, we petition the United States Tax Court for standalone innocent spouse relief under IRC section 6015(e).
Community Property State Defense
In California and other community property states, special rules apply to income allocation. We analyze community property implications for your case.
Understanding the Process
How Innocent Spouse Relief Works
What does the IRS consider when reviewing innocent spouse requests?
The IRS evaluates several factors outlined in IRM 25.15 and Revenue Procedure 2013-34. For traditional innocent spouse relief, the key question is whether you knew or had reason to know about the understatement. The IRS considers your education and business experience, the extent of your involvement in the family finances, the nature of the erroneous item (was it unusual or large?), and any lavish or unusual expenditures that might indicate knowledge of unreported income. For equitable relief, additional factors include whether you are divorced or separated, whether you would suffer economic hardship, whether the requesting spouse received significant benefit from the understatement, whether you complied with tax laws in subsequent years, and your mental or physical health at the time of signing.
How does innocent spouse relief work in California community property cases?
California is a community property state, which means that income earned during marriage is generally considered community property belonging equally to both spouses. This creates complications for innocent spouse relief because the IRS may argue that community property income belongs to both spouses regardless of who earned it. However, IRC section 66 provides specific relief for community property income that one spouse did not know about. We analyze whether your case is better served by innocent spouse relief under section 6015 or by community property relief under section 66, and in some cases, we pursue both.
What happens after I file Form 8857?
After you file Form 8857, the IRS sends a copy to your spouse or former spouse (called the non-requesting spouse) and gives them an opportunity to respond. The IRS then reviews all the information and makes a preliminary determination. If the IRS denies your request, you have the right to appeal to IRS Appeals or petition the Tax Court within 90 days. During the review process, the IRS is generally prohibited from collecting the disputed tax from you. The entire process typically takes 6 to 18 months, though complex cases can take longer.
Can I get innocent spouse relief if I am still married?
Yes. You do not need to be divorced or separated to request innocent spouse relief under IRC section 6015(b) or equitable relief under section 6015(f). However, separation of liability under section 6015(c) is only available if you are divorced, legally separated, widowed, or have not lived together for 12 months. Being still married can make the case more challenging because the IRS may question your claim of not knowing about the errors, but many married taxpayers successfully obtain relief.
Does a divorce decree protect me from IRS collection?
No. A divorce decree or settlement agreement that assigns tax liability to one spouse has absolutely no effect on the IRS. Under joint and several liability, the IRS can collect the full amount from either spouse regardless of what the divorce decree says. The only way to eliminate your liability with the IRS is through innocent spouse relief under IRC section 6015. Your divorce decree may give you a claim against your ex-spouse if they fail to pay the taxes as agreed, but the IRS will continue to hold you responsible until relief is granted.
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Why Brotman Law
Why Choose Brotman Law for Innocent Spouse Cases
Deep Knowledge of IRC Section 6015
We understand all three types of innocent spouse relief, their requirements, and when each is most appropriate. We match your facts to the strongest form of relief.
Comprehensive Case Preparation
Innocent spouse cases are won on documentation. We build detailed packages addressing every factor the IRS considers, with supporting evidence for each point.
California Community Property Expertise
As a California firm, we understand the intersection of community property law and federal tax liability, which creates unique opportunities and challenges.
Tax Court Standing
If the IRS denies relief, we can petition the Tax Court for review — a critical option that provides de novo review of your entire case.
Sensitive and Confidential Handling
We understand that innocent spouse cases often involve difficult personal situations. We handle every case with discretion and sensitivity.
No-Knowledge Defense Strategy
We know how to build compelling arguments that you had no knowledge of your spouse’s tax errors, even when the IRS presumes otherwise.
Frequently Asked Questions
Innocent Spouse Relief FAQs
What is innocent spouse relief?
Innocent spouse relief under IRC section 6015 allows you to be relieved of tax liability arising from a joint return when your spouse or former spouse understated the tax due. There are three types: traditional innocent spouse relief, separation of liability, and equitable relief. Each has different requirements, but all can eliminate your responsibility for tax debt caused by your spouse’s errors.
How long does the innocent spouse relief process take?
The process typically takes 6 to 18 months from the time Form 8857 is filed. The IRS must notify your spouse or former spouse and give them time to respond, then review all the evidence. If the initial determination is unfavorable, IRS Appeals or Tax Court review adds additional time. Complex cases with large amounts at stake may take longer.
Do I need to be divorced to qualify for innocent spouse relief?
No. You can request traditional innocent spouse relief or equitable relief while still married. Only separation of liability relief requires that you be divorced, legally separated, widowed, or living apart for at least 12 months. However, the IRS scrutinizes claims from married couples more carefully regarding the knowledge requirement.
What is the two-year deadline for innocent spouse relief?
For traditional innocent spouse relief and separation of liability, you must file Form 8857 within two years of the date the IRS first began collection activity against you. However, equitable relief has no two-year deadline — Revenue Procedure 2013-34 eliminated this time limit. If you have missed the two-year deadline, equitable relief may still be available.
Will the IRS contact my ex-spouse about my request?
Yes. The IRS is required by law to notify the non-requesting spouse about your Form 8857 filing and give them an opportunity to respond. Your ex-spouse can submit information supporting or opposing your request. However, their opposition does not automatically prevent you from receiving relief.
Can innocent spouse relief eliminate penalties and interest too?
Yes. When innocent spouse relief is granted, it eliminates not only the tax attributable to the understatement but also the associated penalties and interest. The relief applies to the full amount of liability attributable to the errors for which you are being relieved, including all accrued penalties and interest on that portion.
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