Innocent Spouse Relief

Signing a joint return creates joint and several liability. Each spouse is responsible for the entire balance — not half of it — regardless of who earned the income, who prepared the return, or what a divorce decree later says about who pays.

The IRS collects from whoever it can reach. That is frequently the spouse with steady wages and a bank account rather than the one who caused the problem.

Three forms of relief exist under IRC 6015, and California adds its own provisions that matter because this is a community property state. We handle these matters in Temecula, Murrieta, San Diego, Riverside, and San Bernardino.

The Three Forms of Relief

Innocent Spouse Relief — IRC 6015(b)

Available where a joint return contained an understatement of tax attributable to erroneous items of the other spouse, and the requesting spouse did not know and had no reason to know of it when signing — and where holding them liable would be inequitable.

The “reason to know” element is where most of these cases are decided. The IRS asks what a reasonable person in the same circumstances would have understood, weighing education and business experience, involvement in the family’s financial affairs, whether the item was unusually large relative to prior returns, and whether the spouse evaded questions or gave misleading answers.

A spouse who signed without reading is not automatically protected, but a spouse who asked and was misled is in a strong position.

Separation of Liability — IRC 6015(c)

Available to spouses who are divorced, legally separated, widowed, or living apart for the twelve months preceding the request. Rather than eliminating liability, it allocates the understatement between the spouses as if separate returns had been filed. Each is then responsible only for their allocated share.

This is often the cleaner path after a divorce, because it does not require proving the requesting spouse was blameless — only that the items belong to the other spouse. Actual knowledge of the item at signing defeats the allocation for that item.

Equitable Relief — IRC 6015(f)

The catch-all where the first two do not apply. It is the only route available for an underpayment — a return that reported the tax correctly but where it was never paid, which is a common pattern where one spouse handled the finances and simply did not remit.

Relief is discretionary and weighed across factors set out in Revenue Procedure 2013-34: marital status, economic hardship, knowledge, legal obligation under a divorce decree, significant benefit received, compliance since, and health — including abuse and financial control, which the IRS treats as weighing heavily in favor of relief and which can excuse knowledge that would otherwise defeat a claim.

Deadlines

Relief under 6015(b) and 6015(c) must generally be requested within two years of the first IRS collection activity against the requesting spouse — a levy, an offset, or a Collection Due Process notice. Ordinary balance-due notices generally do not start the clock; the trigger is collection directed at that spouse.

Equitable relief under 6015(f) is not bound by the two-year rule. Under Rev. Proc. 2013-34 a request is timely if made while the collection statute remains open, or within the refund period where a refund is sought. That change matters, because the two-year rule previously barred spouses who did not learn of the liability until years later.

How the Process Works

Relief is requested on Form 8857, which asks for the marital history, the financial arrangements, who handled the return, and what the requesting spouse knew.

One feature surprises people and needs to be understood before filing: the IRS is required to notify the non-requesting spouse and give them an opportunity to participate. Their address is not disclosed, but they will learn a request was made and may submit information opposing it. For someone leaving an abusive relationship, this is a serious consideration and should be discussed before anything is filed — there are ways to raise safety concerns with the Service.

Collection against the requesting spouse is generally suspended while the request is pending. If relief is denied, the determination can be petitioned to the United States Tax Court within 90 days under IRC 6015(e), and the Tax Court reviews these cases de novo — meaning it decides the question fresh rather than reviewing the IRS for abuse of discretion.

Injured Spouse Is a Different Thing

These are constantly confused. Injured spouse relief, claimed on Form 8379, has nothing to do with liability for an understatement.

It applies when a joint refund is seized to pay the other spouse’s separate pre-existing debt — defaulted student loans, child support arrears, or a tax liability from before the marriage. The injured spouse claims their share of the refund back.

Form 8379 can be filed with the return or afterward. It is procedurally straightforward and frequently overlooked by couples who simply lose a refund each year without knowing there is a remedy.

The California Layer

California is a community property state, which complicates the analysis in ways that do not arise in most of the country.

Community property principles generally attribute half of community income to each spouse regardless of who earned it. That can create liability for a spouse who had no involvement in producing the income at all — including for spouses who filed separately, since community property rules apply to the allocation of income between separate returns.

IRC 66 provides relief from that community property attribution where the spouses lived apart, filed separately, and the requesting spouse did not know of the income. This is a distinct provision from 6015 and applies in situations where 6015 does not, because 6015 requires a joint return and section 66 does not.

California has its own innocent spouse provisions under Revenue and Taxation Code section 18533, which broadly parallel the federal rules. But relief is not automatic: obtaining federal relief does not resolve the California liability. A separate request must be made to the Franchise Tax Board, and the FTB reaches its own conclusion.

This matters more than it might appear, because California has twenty years to collect under R&TC 19255 against the IRS’s ten. A spouse who obtains federal relief and stops there can face state collection for another decade. See tax relief.

What Makes These Cases Succeed

The determination turns on documented facts about the marriage and the finances, not on assertions of unfairness.

What helps: evidence of who controlled the accounts and prepared the returns; bank records showing the requesting spouse had no access or visibility; divorce filings, restraining orders, police reports, medical records, or counseling records where abuse or financial control is involved; proof the requesting spouse did not benefit from the unreported income beyond normal support; and a clean compliance record since.

What hurts: signing returns reporting income far below the family’s evident lifestyle; joint accounts through which the funds visibly passed; continued marriage and shared benefit; and a pattern of similar issues across multiple years.

Because the non-requesting spouse gets to respond, the record should be assembled before filing rather than developed in reaction to what they submit.

Frequently Asked Questions

My divorce decree says my ex is responsible. Doesn’t that settle it?

Not as to the IRS. A decree binds the spouses to each other and is enforceable in family court, but it does not affect joint and several liability. The IRS can still collect the full balance from you.

What is the deadline to request relief?

Generally two years from the first collection activity against you for innocent spouse and separation of liability relief. Equitable relief is not subject to that limit and may be requested while the collection statute remains open.

Will my former spouse find out?

Yes. The IRS must notify the non-requesting spouse and allow them to participate. Your address is not disclosed. If safety is a concern, raise it before filing.

Can I get relief if the tax was reported but not paid?

Only through equitable relief under 6015(f). The other two provisions address understatements, not underpayments.

Does federal relief resolve my California liability?

No. California requires a separate request under R&TC 18533 and decides independently — and the state has twenty years to collect.

What if we filed separately but California community property rules still assigned me income?

IRC 66 provides relief from community property attribution for spouses who lived apart, filed separately, and did not know of the income. It applies where section 6015 does not.

What happens if my request is denied?

You may petition the Tax Court within 90 days under IRC 6015(e). The court reviews the question de novo rather than deferring to the IRS determination.

Get the Request Right the First Time

These cases are decided on a record that the requesting spouse builds, with a former spouse who may be actively opposing it. The facts that matter — who controlled the money, what was known, what was benefited from — are provable, but they need assembling before Form 8857 is filed.

Pietro Canestrelli holds an LL.M. in Taxation and handles innocent spouse, separation of liability, equitable relief, injured spouse claims, and the parallel California requests. Schedule a consultation, or review our income tax and tax relief services.