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Hand r block com Publication 971 - Main Content Table of Contents How To Request ReliefException for agreements relating to TEFRA partnership proceedings. Hand r block com The IRS Must Contact Your Spouse or Former Spouse Tax Court Review of Request Community Property LawsRelief for Married Persons Who Did Not File Joint Returns Innocent Spouse ReliefUnderstated Tax Erroneous Items Actual Knowledge or Reason To Know Indications of Unfairness for Innocent Spouse Relief Separation of Liability ReliefLimitations on Relief Equitable ReliefConditions for Getting Equitable Relief Factors for Determining Whether To Grant Equitable Relief RefundsProof Required Refunds Under Equitable Relief Limit on Amount of Refund Filled-in Form 8857 Flowcharts How To Request Relief File Form 8857 to ask the IRS for the types of relief discussed in this publication. Hand r block com If you are requesting relief for more than three tax years, you must file an additional Form 8857. Hand r block com The IRS will review your Form 8857 and let you know if you qualify. Hand r block com A completed Form 8857 is shown later. Hand r block com When to file Form 8857. Hand r block com   You should file Form 8857 as soon as you become aware of a tax liability for which you believe only your spouse or former spouse should be held responsible. Hand r block com The following are some of the ways you may become aware of such a liability. Hand r block com The IRS is examining your tax return and proposing to increase your tax liability. Hand r block com The IRS sends you a notice. Hand r block com   You must file Form 8857 no later than two years after the date on which the IRS first attempted to collect the tax from you that occurs after July 22, 1998. Hand r block com (But see the exceptions below for different filing deadlines that apply. Hand r block com ) For this reason, do not delay filing because you do not have all the documentation. Hand r block com   Collection activities that may start the 2-year period are: The IRS offset your income tax refund against an amount you owed on a joint return for another year and the IRS informed you about your right to file Form 8857. Hand r block com The filing of a claim by the IRS in a court proceeding in which you were a party or the filing of a claim in a proceeding that involves your property. Hand r block com This includes the filing of a proof of claim in a bankruptcy proceeding. Hand r block com The filing of a suit by the United States against you to collect the joint liability. Hand r block com The issuance of a section 6330 notice, which notifies you of the IRS' intent to levy and your right to a collection due process (CDP) hearing. Hand r block com The collection-related notices include, but are not limited to, Letter 11 and Letter 1058. Hand r block com Exception for equitable relief. Hand r block com   On July 25, 2011, the IRS issued Notice 2011-70 (available at www. Hand r block com irs. Hand r block com gov/irb/2011-32_IRB/ar11. Hand r block com html) expanding the amount of time to request equitable relief. Hand r block com The amount of time to request equitable relief depends on whether you are seeking relief from a balance due, seeking a credit or refund, or both: Balance Due – Generally, you must file your request within the time period the IRS has to collect the tax. Hand r block com Generally, the IRS has 10 years from the date the tax liability was assessed to collect the tax. Hand r block com In certain cases, the 10-year period is suspended. Hand r block com The amount of time the suspension is in effect will extend the time the IRS has to collect the tax. Hand r block com See Pub. Hand r block com 594, The IRS Collection Process, for details. Hand r block com Credit or Refund – Generally, you must file your request within 3 years after the date the original return was filed or within 2 years after the date the tax was paid, whichever is later. Hand r block com But you may have more time to file if you live in a federally declared disaster area or you are physically or mentally unable to manage your financial affairs. Hand r block com See Pub. Hand r block com 556, Examination of Returns, Appeal Rights, and Claims for Refund, for details. Hand r block com Both a Balance Due and a Credit or Refund – If you are seeking a refund of amounts you paid and relief from a balance due over and above what you have paid, the time period for credit or refund will apply to any payments you have made, and the time period for collection of a balance due amount will apply to any unpaid liability. Hand r block com Exception for relief based on community property laws. Hand r block com   If you are requesting relief based on community property laws, a different filing deadline applies. Hand r block com See Relief from liability arising from community property law discussed later under Community Property Laws . Hand r block com Form 8857 filed by or on behalf of a decedent. Hand r block com   An executor (including any other duly appointed representative) may pursue a Form 8857 filed during the decedent's lifetime. Hand r block com An executor (including any other duly appointed representative) may also file Form 8857 as long as the decedent satisfied the eligibility requirements while alive. Hand r block com For purposes of separation of liability relief (discussed later), the decedent's marital status is determined on the earlier of the date relief was requested or the date of death. Hand r block com Situations in which you are not entitled to relief. Hand r block com   You are not entitled to innocent spouse relief for any tax year to which the following situations apply. Hand r block com In a final decision dated after July 22, 1998, a court considered whether to grant you relief from joint liability and decided not to do so. Hand r block com In a final decision dated after July 22, 1998, a court did not consider whether to grant you relief from joint liability, but you meaningfully participated in the proceeding and could have asked for relief. Hand r block com You entered into an offer in compromise with the IRS. Hand r block com You entered into a closing agreement with the IRS that disposed of the same liability for which you want to seek relief. Hand r block com Exception for agreements relating to TEFRA partnership proceedings. Hand r block com   You may be entitled to relief, discussed in (4) earlier, if you entered into a closing agreement for both partnership items and nonpartnership items, while you were a party to a pending TEFRA partnership proceeding. Hand r block com (TEFRA is an acronym that refers to the “Tax Equity and Fiscal Responsibility Act of 1982” that prescribed the tax treatment of partnership items. Hand r block com ) You are not entitled to relief for the nonpartnership items, but you will be entitled to relief for the partnership items (if you otherwise qualify). Hand r block com Transferee liability not affected by innocent spouse relief provisions. Hand r block com   The innocent spouse relief provisions do not affect tax liabilities that arise under federal or state transferee liability or property laws. Hand r block com Therefore, even if you are relieved of the tax liability under the innocent spouse relief provisions, you may remain liable for the unpaid tax, interest, and penalties to the extent provided by these laws. Hand r block com Example. Hand r block com Herb and Wanda timely filed their 2008 joint income tax return on April 15, 2009. Hand r block com Herb died in March 2010, and the executor of Herb's will transferred all of the estate's assets to Wanda. Hand r block com In August 2010, the IRS assessed a deficiency for the 2008 return. Hand r block com The items causing the deficiency belong to Herb. Hand r block com Wanda is relieved of the deficiency under the innocent spouse relief provisions, and Herb's estate remains solely liable for it. Hand r block com However, the IRS may collect the deficiency from Wanda to the extent permitted under federal or state transferee liability or property laws. Hand r block com The IRS Must Contact Your Spouse or Former Spouse By law, the IRS must contact your spouse or former spouse. Hand r block com There are no exceptions, even for victims of spousal abuse or domestic violence. Hand r block com We will inform your spouse or former spouse that you filed Form 8857 and will allow him or her to participate in the process. Hand r block com If you are requesting relief from joint and several liability on a joint return, the IRS must also inform him or her of its preliminary and final determinations regarding your request for relief. Hand r block com However, to protect your privacy, the IRS will not disclose your personal information (for example, your current name, address, phone number(s), information about your employer, your income or assets) or any other information that does not relate to making a determination about your request for relief from liability. Hand r block com If you petition the Tax Court (explained below), your spouse or former spouse may see your personal information. Hand r block com Tax Court Review of Request After you file Form 8857, you may be able to petition (ask) the United States Tax Court to review your request for relief in the following two situations. Hand r block com The IRS sends you a final determination letter regarding your request for relief. Hand r block com You do not receive a final determination letter from the IRS within six months from the date you filed Form 8857. Hand r block com If you seek equitable relief for an underpaid tax, you will be able to get a Tax Court review of your request only if the tax arose or remained unpaid on or after December 20, 2006. Hand r block com The United States Tax Court is an independent judicial body and is not part of the IRS. Hand r block com You must file a petition with the United States Tax Court in order for it to review your request for relief. Hand r block com You must file the petition no later than the 90th day after the date the IRS mails its final determination notice to you. Hand r block com If you do not file a petition, or you file it late, the Tax Court cannot review your request for relief. Hand r block com You can get a copy of the rules for filing a petition by writing to the Tax Court at the following address:    United States Tax Court 400 Second Street, NW Washington, DC 20217 Or you can visit the Tax Court's website at www. Hand r block com ustaxcourt. Hand r block com gov Community Property Laws You must generally follow community property laws when filing a tax return if you are married and live in a community property state. Hand r block com Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Hand r block com Generally, community property laws require you to allocate community income and expenses equally between both spouses. Hand r block com However, community property laws are not taken into account in determining whether an item belongs to you or to your spouse (or former spouse) for purposes of requesting any relief from liability. Hand r block com Relief for Married Persons Who Did Not File Joint Returns Married persons who live in community property states, but who did not file joint returns, have two ways to get relief. Hand r block com Relief From Liability Arising From Community Property Law You are not responsible for the tax relating to an item of community income if all the following conditions exist. Hand r block com You did not file a joint return for the tax year. Hand r block com You did not include the item of community income in gross income. Hand r block com The item of community income you did not include is one of the following: Wages, salaries, and other compensation your spouse (or former spouse) received for services he or she performed as an employee. Hand r block com Income your spouse (or former spouse) derived from a trade or business he or she operated as a sole proprietor. Hand r block com Your spouse's (or former spouse's) distributive share of partnership income. Hand r block com Income from your spouse's (or former spouse's) separate property (other than income described in (a), (b), or (c)). Hand r block com Use the appropriate community property law to determine what is separate property. Hand r block com Any other income that belongs to your spouse (or former spouse) under community property law. Hand r block com You establish that you did not know of, and had no reason to know of, that community income. Hand r block com See  Actual Knowledge or Reason To Know , below. Hand r block com Under all facts and circumstances, it would not be fair to include the item of community income in your gross income. Hand r block com See Indications of unfairness for liability arising from community property law, later. Hand r block com Actual knowledge or reason to know. Hand r block com   You knew or had reason to know of an item of community income if: You actually knew of the item of community income, or A reasonable person in similar circumstances would have known of the item of community income. Hand r block com Amount of community income unknown. Hand r block com   If you are aware of the source of the item of community income or the income-producing activity, but are unaware of the specific amount, you are considered to know or have reason to know of the item of community income. Hand r block com Not knowing the specific amount is not a basis for relief. Hand r block com Reason to know. Hand r block com   The IRS will consider all facts and circumstances in determining whether you had reason to know of an item of community income. Hand r block com The facts and circumstances include: The nature of the item of community income and the amount of the item relative to other income items. Hand r block com The financial situation of you and your spouse (or former spouse). Hand r block com Your educational background and business experience. Hand r block com Whether the item of community income represented a departure from a recurring pattern reflected in prior years' returns (for example, omitted income from an investment regularly reported on prior years' returns). Hand r block com Indications of unfairness for liability arising from community property law. Hand r block com   The IRS will consider all of the facts and circumstances of the case in order to determine whether it is unfair to hold you responsible for the understated tax due to the item of community income. Hand r block com   The following are examples of factors the IRS will consider. Hand r block com Whether you received a benefit, either directly or indirectly, from the omitted item of community income (defined below). Hand r block com Whether your spouse (or former spouse) deserted you. Hand r block com Whether you and your spouse have been divorced or separated. Hand r block com  For other factors see Factors for Determining Whether To Grant Equitable Relief later. Hand r block com Benefit from omitted item of community income. Hand r block com   A benefit includes normal support, but does not include de minimis (small) amounts. Hand r block com Evidence of a direct or indirect benefit may consist of transfers of property or rights to property, including transfers received several years after the filing of the return. Hand r block com   For example, if you receive property, including life insurance proceeds, from your spouse (or former spouse) and the property is traceable to omitted items of community income attributable to your spouse (or former spouse), you are considered to have benefitted from those omitted items of community income. Hand r block com Equitable Relief If you do not qualify for the relief described above and are now liable for an underpaid or understated tax you believe should be paid only by your spouse (or former spouse), you may request equitable relief (discussed later). Hand r block com How and When To Request Relief You request relief by filing Form 8857, as discussed earlier. Hand r block com Fill in Form 8857 according to the instructions. Hand r block com For relief from liability arising from community property law, you must file Form 8857 no later than 6 months before the expiration of the period of limitations on assessment (including extensions) against your spouse for the tax year for which you are requesting relief. Hand r block com However, if the IRS begins an examination of your return during that 6-month period, the latest time for requesting relief is 30 days after the date the IRS' initial contact letter to you. Hand r block com The period of limitation on assessment is the amount of time, generally three years, that the IRS has from the date you filed the return to assess taxes that you owe. Hand r block com Innocent Spouse Relief By requesting innocent spouse relief, you can be relieved of responsibility for paying tax, interest, and penalties if your spouse (or former spouse) improperly reported items or omitted items on your tax return. Hand r block com Generally, the tax, interest, and penalties that qualify for relief can only be collected from your spouse (or former spouse). Hand r block com However, you are jointly and individually responsible for any tax, interest, and penalties that do not qualify for relief. Hand r block com The IRS can collect these amounts from either you or your spouse (or former spouse). Hand r block com You must meet all of the following conditions to qualify for innocent spouse relief. Hand r block com You filed a joint return. Hand r block com There is an understated tax on the return that is due to erroneous items (defined later) of your spouse (or former spouse). Hand r block com You can show that when you signed the joint return you did not know, and had no reason to know, that the understated tax existed (or the extent to which the understated tax existed). Hand r block com See Actual Knowledge or Reason To Know, later. Hand r block com Taking into account all the facts and circumstances, it would be unfair to hold you liable for the understated tax. Hand r block com See Indications of Unfairness for Innocent Spouse Relief , later. Hand r block com Innocent spouse relief will not be granted if the IRS proves that you and your spouse (or former spouse) transferred property to one another as part of a fraudulent scheme. Hand r block com A fraudulent scheme includes a scheme to defraud the IRS or another third party, such as a creditor, former spouse, or business partner. Hand r block com Understated Tax You have an understated tax if the IRS determined that your total tax should be more than the amount that was actually shown on your return. Hand r block com Erroneous Items Erroneous items are either of the following. Hand r block com Unreported income. Hand r block com This is any gross income item received by your spouse (or former spouse) that is not reported. Hand r block com Incorrect deduction, credit, or basis. Hand r block com This is any improper deduction, credit, or property basis claimed by your spouse (or former spouse). Hand r block com The following are examples of erroneous items. Hand r block com The expense for which the deduction is taken was never paid or incurred. Hand r block com For example, your spouse, a cash-basis taxpayer, deducted $10,000 of advertising expenses on Schedule C of your joint Form 1040, but never paid for any advertising. Hand r block com The expense does not qualify as a deductible expense. Hand r block com For example, your spouse claimed a business fee deduction of $10,000 that was for the payment of state fines. Hand r block com Fines are not deductible. Hand r block com No factual argument can be made to support the deductibility of the expense. Hand r block com For example, your spouse claimed $4,000 for security costs related to a home office, which were actually veterinary and food costs for your family's two dogs. Hand r block com Actual Knowledge or Reason To Know You knew or had reason to know of an understated tax if: You actually knew of the understated tax, or A reasonable person in similar circumstances would have known of the understated tax. Hand r block com Actual knowledge. Hand r block com   If you actually knew about an erroneous item that belongs to your spouse (or former spouse), the relief discussed here does not apply to any part of the understated tax due to that item. Hand r block com You and your spouse (or former spouse) remain jointly liable for that part of the understated tax. Hand r block com For information about the criteria for determining whether you actually knew about an erroneous item, see Actual Knowledge later under Separation of Liability Relief. Hand r block com Reason to know. Hand r block com   If you had reason to know about an erroneous item that belongs to your spouse (or former spouse), the relief discussed here does not apply to any part of the understated tax due to that item. Hand r block com You and your spouse (or former spouse) remain jointly liable for that part of the understated tax. Hand r block com   The IRS will consider all facts and circumstances in determining whether you had reason to know of an understated tax due to an erroneous item. Hand r block com The facts and circumstances include: The nature of the erroneous item and the amount of the erroneous item relative to other items. Hand r block com The financial situation of you and your spouse (or former spouse). Hand r block com Your educational background and business experience. Hand r block com The extent of your participation in the activity that resulted in the erroneous item. Hand r block com Whether you failed to ask, at or before the time the return was signed, about items on the return or omitted from the return that a reasonable person would question. Hand r block com Whether the erroneous item represented a departure from a recurring pattern reflected in prior years' returns (for example, omitted income from an investment regularly reported on prior years' returns). Hand r block com Partial relief when a portion of erroneous item is unknown. Hand r block com   You may qualify for partial relief if, at the time you filed your return, you had no knowledge or reason to know of only a portion of an erroneous item. Hand r block com You will be relieved of the understated tax due to that portion of the item if all other requirements are met for that portion. Hand r block com Example. Hand r block com At the time you signed your joint return, you knew that your spouse did not report $5,000 of gambling winnings. Hand r block com The IRS examined your tax return several months after you filed it and determined that your spouse's unreported gambling winnings were actually $25,000. Hand r block com You established that you did not know about, and had no reason to know about, the additional $20,000 because of the way your spouse handled gambling winnings. Hand r block com The understated tax due to the $20,000 will qualify for innocent spouse relief if you meet the other requirements. Hand r block com The understated tax due to the $5,000 of gambling winnings you knew about will not qualify for relief. Hand r block com Indications of Unfairness for Innocent Spouse Relief The IRS will consider all of the facts and circumstances of the case in order to determine whether it is unfair to hold you responsible for the understated tax. Hand r block com The following are examples of factors the IRS will consider. Hand r block com Whether you received a significant benefit (defined below), either directly or indirectly, from the understated tax. Hand r block com Whether your spouse (or former spouse) deserted you. Hand r block com Whether you and your spouse have been divorced or separated. Hand r block com Whether you received a benefit on the return from the understated tax. Hand r block com For other factors, see Factors for Determining Whether To Grant Equitable Relief later under Equitable Relief. Hand r block com Significant benefit. Hand r block com   A significant benefit is any benefit in excess of normal support. Hand r block com Normal support depends on your particular circumstances. Hand r block com Evidence of a direct or indirect benefit may consist of transfers of property or rights to property, including transfers that may be received several years after the year of the understated tax. Hand r block com Example. Hand r block com You receive money from your spouse that is beyond normal support. Hand r block com The money can be traced to your spouse's lottery winnings that were not reported on your joint return. Hand r block com You will be considered to have received a significant benefit from that income. Hand r block com This is true even if your spouse gives you the money several years after he or she received it. Hand r block com Separation of Liability Relief Under this type of relief, the understated tax (plus interest and penalties) on your joint return is allocated between you and your spouse (or former spouse). Hand r block com The understated tax allocated to you is generally the amount you are responsible for. Hand r block com This type of relief is available only for unpaid liabilities resulting from the understated tax. Hand r block com Refunds are not allowed. Hand r block com To request separation of liability relief, you must have filed a joint return and meet either of the following requirements at the time you file Form 8857. Hand r block com You are no longer married to, or are legally separated from, the spouse with whom you filed the joint return for which you are requesting relief. Hand r block com (Under this rule, you are no longer married if you are widowed. Hand r block com ) You were not a member of the same household (explained below) as the spouse with whom you filed the joint return at any time during the 12-month per- iod ending on the date you file Form 8857. Hand r block com Members of the same household. Hand r block com   You and your spouse are not members of the same household if you are living apart and are estranged. Hand r block com However, you and your spouse are considered members of the same household if any of the following conditions are met. Hand r block com You and your spouse reside in the same dwelling. Hand r block com You and your spouse reside in separate dwellings but are not estranged, and one of you is temporarily absent from the other's household as explained in (3) below. Hand r block com Either spouse is temporarily absent from the household and it is reasonable to assume that the absent spouse will return to the household, and the household or a substantially equivalent household is maintained in anticipation of the absent spouse's return. Hand r block com Examples of temporary absences include absence due to imprisonment, illness, business, vacation, military service, or education. Hand r block com Burden of proof. Hand r block com   You must be able to prove that you meet all of the requirements for separation of liability relief (except actual knowledge) and that you did not transfer property to avoid tax (discussed later). Hand r block com You must also establish the basis for allocating the erroneous items. Hand r block com Limitations on Relief Even if you meet the requirements discussed previously, separation of liability relief will not be granted in the following situations. Hand r block com The IRS proves that you and your spouse (or former spouse) transferred assets to one another as part of a fraudulent scheme. Hand r block com A fraudulent scheme includes a scheme to defraud the IRS or another third party, such as a creditor, former spouse, or business partner. Hand r block com The IRS proves that at the time you signed your joint return, you had actual knowledge (explained below) of any erroneous items giving rise to the deficiency that were allocable to your spouse (or former spouse). Hand r block com For the definition of erroneous items, see Erroneous Items earlier under Innocent Spouse Relief. Hand r block com Your spouse (or former spouse) transferred property to you to avoid tax or the payment of tax. Hand r block com See Transfers of Property To Avoid Tax , later. Hand r block com Actual Knowledge The relief discussed here does not apply to any part of the understated tax due to your spouse's (or former spouse's) erroneous items of which you had actual knowledge. Hand r block com You and your spouse (or former spouse) remain jointly and severally liable for this part of the understated tax. Hand r block com If you had actual knowledge of only a portion of an erroneous item, the IRS will not grant relief for that portion of the item. Hand r block com You had actual knowledge of an erroneous item if: You knew that an item of unreported income was received. Hand r block com (This rule applies whether or not there was a receipt of cash. Hand r block com ) You knew of the facts that made an incorrect deduction or credit unallowable. Hand r block com For a false or inflated deduction, you knew that the expense was not incurred, or not incurred to the extent shown on the tax return. Hand r block com Knowledge of the source of an erroneous item is not sufficient to establish actual knowledge. Hand r block com Also, your actual knowledge may not be inferred when you merely had a reason to know of the erroneous item. Hand r block com Similarly, the IRS does not have to establish that you knew of the source of an erroneous item in order to establish that you had actual knowledge of the item itself. Hand r block com Your actual knowledge of the proper tax treatment of an erroneous item is not relevant for purposes of demonstrating that you had actual knowledge of that item. Hand r block com Neither is your actual knowledge of how the erroneous item was treated on the tax return. Hand r block com For example, if you knew that your spouse received dividend income, relief is not available for that income even if you did not know it was taxable. Hand r block com Example. Hand r block com Bill and Karen Green filed a joint return showing Karen's wages of $50,000 and Bill's self-employment income of $10,000. Hand r block com The IRS audited their return and found that Bill did not report $20,000 of self-employment income. Hand r block com The additional income resulted in a $6,000 understated tax, plus interest and penalties. Hand r block com After obtaining a legal separation from Bill, Karen filed Form 8857 to request separation of liability relief. Hand r block com The IRS proved that Karen actually knew about the $20,000 of additional income at the time she signed the joint return. Hand r block com Bill is liable for all of the understated tax, interest, and penalties because all of it was due to his unreported income. Hand r block com Karen is also liable for the understated tax, interest, and penalties due to the $20,000 of unreported income because she actually knew of the item. Hand r block com The IRS can collect the entire $6,000 plus interest and penalties from either Karen or Bill because they are jointly and individually liable for it. Hand r block com Factors supporting actual knowledge. Hand r block com   The IRS may rely on all facts and circumstances in determining whether you actually knew of an erroneous item at the time you signed the return. Hand r block com The following are examples of factors the IRS may use. Hand r block com Whether you made a deliberate effort to avoid learning about the item in order to be shielded from liability. Hand r block com Whether you and your spouse (or former spouse) jointly owned the property that resulted in the erroneous item. Hand r block com Exception for spousal abuse or domestic violence. Hand r block com   Even if you had actual knowledge, you may still qualify for relief if you establish that: You were the victim of spousal abuse or domestic violence before signing the return, and Because of that abuse, you did not challenge the treatment of any items on the return because you were afraid your spouse (or former spouse) would retaliate against you. Hand r block com   If you establish that you signed your joint return under duress (threat of harm or other form of coercion), then it is not a joint return, and you are not liable for any tax shown on that return or any tax deficiency for that return. Hand r block com However, you may be required to file a separate return for that tax year. Hand r block com For more information about duress, see the instructions for Form 8857. Hand r block com Transfers of Property To Avoid Tax If your spouse (or former spouse) transfers property (or the right to property) to you for the main purpose of avoiding tax or payment of tax, the tax liability allocated to you will be increased by the fair market value of the property on the date of the transfer. Hand r block com The increase may not be more than the entire amount of the liability. Hand r block com A transfer will be presumed to have as its main purpose the avoidance of tax or payment of tax if the transfer is made after the date that is 1 year before the date on which the IRS sent its first letter of proposed deficiency. Hand r block com This presumption will not apply if: The transfer was made under a divorce decree, separate maintenance agreement, or a written instrument incident to such an agreement, or You establish that the transfer did not have as its main purpose the avoidance of tax or payment of tax. Hand r block com If the presumption does not apply, but the IRS can establish that the purpose of the transfer was the avoidance of tax or payment of tax, the tax liability allocated to you will be increased as explained above. Hand r block com Equitable Relief If you do not qualify for innocent spouse relief, separation of liability relief, or relief from liability arising from community property law, you may still be relieved of responsibility for tax, interest, and penalties through equitable relief. Hand r block com Unlike innocent spouse relief or separation of liability relief, you can get equitable relief from an understated tax (defined earlier under Innocent Spouse Relief ) or an underpaid tax. Hand r block com An underpaid tax is an amount of tax you properly reported on your return but you have not paid. Hand r block com For example, your joint 2009 return shows that you and your spouse owed $5,000. Hand r block com You paid $2,000 with the return. Hand r block com You have an underpaid tax of $3,000. Hand r block com Conditions for Getting Equitable Relief You may qualify for equitable relief if you meet all of the following conditions. Hand r block com You are not eligible for innocent spouse relief, separation of liability relief, or relief from liability arising from community property law. Hand r block com You have an understated tax or an underpaid tax. Hand r block com You did not pay the tax. Hand r block com However, see Refunds , later, for situations in which you are entitled to a refund of payments you made. Hand r block com You establish that, taking into account all the facts and circumstances, it would be unfair to hold you liable for the understated or underpaid tax. Hand r block com See Factors for Determining Whether To Grant Equitable Relief, later. Hand r block com You and your spouse (or former spouse) did not transfer assets to one another as a part of a fraudulent scheme. Hand r block com A fraudulent scheme includes a scheme to defraud the IRS or another third party, such as a creditor, former spouse, or business partner. Hand r block com Your spouse (or former spouse) did not transfer property to you for the main purpose of avoiding tax or the payment of tax. Hand r block com See Transfers of Property To Avoid Tax, earlier, under Separation of Liability Relief. Hand r block com You did not file or fail to file your return with the intent to commit fraud. Hand r block com The income tax liability from which you seek relief must be attributable to an item of the spouse (or former spouse) with whom you filed the joint return, unless one of the following exceptions applies: The item is attributable or partially attributable to you solely due to the operation of community property law. Hand r block com If you meet this exception, that item will be considered attributable to your spouse (or former spouse) for purposes of equitable relief. Hand r block com If the item is titled in your name, the item is presumed to be attributable to you. Hand r block com However, you can rebut this presumption based on the facts and circumstances. Hand r block com You did not know, and had no reason to know, that funds intended for the payment of tax were misappropriated by your spouse (or former spouse) for his or her benefit. Hand r block com If you meet this exception, the IRS will consider granting equitable relief although the underpaid tax may be attributable in part or in full to your item, and only to the extent the funds intended for payment were taken by your spouse (or former spouse). Hand r block com You establish that you were the victim of spousal abuse or domestic violence before signing the return, and that, as a result of the prior abuse, you did not challenge the treatment of any items on the return for fear of your spouse's (or former spouse's) retaliation. Hand r block com If you meet this exception, relief will be considered although the understated tax or underpaid tax may be attributable in part or in full to your item. Hand r block com Factors for Determining Whether To Grant Equitable Relief The IRS will consider all of the facts and circumstances in order to determine whether it is unfair to hold you responsible for the understated or underpaid tax. Hand r block com The following are examples of factors that the IRS will consider to determine whether to grant equitable relief. Hand r block com The IRS will consider all factors and weigh them appropriately. Hand r block com Relevant Factors The following are examples of factors that may be relevant to whether the IRS will grant equitable relief. Hand r block com Whether you are separated (whether legally or not) or divorced from your spouse. Hand r block com A temporary absence, such as an absence due to imprisonment, illness, business, vacation, military service, or education, is not considered separation for this purpose. Hand r block com A temporary absence is one where it is reasonable to assume that the absent spouse will return to the household, and the household or a substantially equivalent household is maintained in anticipation of the absent spouse's return. Hand r block com Whether you would suffer a significant economic hardship if relief is not granted. Hand r block com (In other words, you would not be able to pay your reasonable basic living expenses. Hand r block com ) Whether you have a legal obligation under a divorce decree or agreement to pay the tax. Hand r block com This factor will not weigh in favor of relief if you knew or had reason to know, when entering into the divorce decree or agreement, that your former spouse would not pay the income tax liability. Hand r block com Whether you received a significant benefit (beyond normal support) from the underpaid tax or item causing the understated tax. Hand r block com (For a definition of significant benefit, see Indications of Unfairness for Innocent Spouse Relief earlier. Hand r block com ) Whether you have made a good faith effort to comply with federal income tax laws for the tax year for which you are requesting relief or the following years. Hand r block com Whether you knew or had reason to know about the items causing the understated tax or that the tax would not be paid, as explained next. Hand r block com Knowledge or reason to know. Hand r block com   In the case of an underpaid tax, the IRS will consider whether you did not know and had no reason to know that your spouse (or former spouse) would not pay the income tax liability. Hand r block com   In the case of an income tax liability that arose from an understated tax, the IRS will consider whether you did not know and had no reason to know of the item causing the understated tax. Hand r block com Reason to know of the item giving rise to the understated tax will not be weighed more heavily than other factors. Hand r block com Actual knowledge of the item giving rise to the understated tax, however, is a strong factor weighing against relief. Hand r block com This strong factor may be overcome if the factors in favor of equitable relief are particularly compelling. Hand r block com Reason to know. Hand r block com   In determining whether you had reason to know, the IRS will consider your level of education, any deceit or evasiveness of your spouse (or former spouse), your degree of involvement in the activity generating the income tax liability, your involvement in business and household financial matters, your business or financial expertise, and any lavish or unusual expenditures compared with past spending levels. Hand r block com Example. Hand r block com You and your spouse filed a joint 2009 return. Hand r block com That return showed you owed $10,000. Hand r block com You had $5,000 of your own money and you took out a loan to pay the other $5,000. Hand r block com You gave 2 checks for $5,000 each to your spouse to pay the $10,000 liability. Hand r block com Without telling you, your spouse took the $5,000 loan and spent it on himself. Hand r block com You and your spouse were divorced in 2010. Hand r block com In addition, you had no knowledge or reason to know at the time you signed the return that the tax would not be paid. Hand r block com These facts indicate to the IRS that it may be unfair to hold you liable for the $5,000 underpaid tax. Hand r block com The IRS will consider these facts, together with all of the other facts and circumstances, to determine whether to grant you equitable relief from the $5,000 underpaid tax. Hand r block com Factors Weighing in Favor of Equitable Relief The following are examples of factors that will weigh in favor of equitable relief, but will not weigh against equitable relief. Hand r block com Whether your spouse (or former spouse) abused you. Hand r block com Whether you were in poor mental or physical health on the date you signed the return or at the time you requested relief. Hand r block com Refunds If you are granted relief, refunds are: Permitted under innocent spouse relief as explained later under Limit on Amount of Refund . Hand r block com Not permitted under separation of liability relief. Hand r block com Permitted in limited circumstances under equitable relief, as explained under Refunds Under Equitable Relief. Hand r block com Proof Required The IRS will only refund payments you made with your own money. Hand r block com However, you must provide proof that you made the payments with your own money. Hand r block com Examples of proof are a copy of your bank statement or a canceled check. Hand r block com No proof is required if your individual refund was used by the IRS to pay a tax you owed on a joint tax return for another year. Hand r block com Refunds Under Equitable Relief In the following situations, you are eligible to receive a refund of certain payments you made. Hand r block com Underpaid tax. Hand r block com   If you are granted relief for an underpaid tax, you are eligible for a refund of separate payments that you made after July 22, 1998. Hand r block com However, you are not eligible for refunds of payments made with the joint return, joint payments, or payments that your spouse (or former spouse) made. Hand r block com For example, withholding tax and estimated tax payments cannot be refunded because they are considered made with the joint return. Hand r block com   The amount of the refund is subject to the limit discussed later under Limit on Amount of Refund. Hand r block com Understated tax. Hand r block com   If you are granted relief for an understated tax, you are eligible for a refund of certain payments made under an installment agreement that you entered into with the IRS, if you have not defaulted on the installment agreement. Hand r block com You are not in default if the IRS did not issue you a notice of default or take any action to end the installment agreement. Hand r block com Only installment payments made after the date you filed Form 8857 are eligible for a refund. Hand r block com   The amount of the refund is subject to the limit discussed next. Hand r block com Limit on Amount of Refund The amount of your refund is limited. Hand r block com Read the following chart to find out the limit. Hand r block com IF you file Form 8857. Hand r block com . Hand r block com . Hand r block com THEN the refund cannot be more than. Hand r block com . Hand r block com . Hand r block com Within 3 years after filing your return The part of the tax paid within 3 years (plus any extension of time for filing your return) before you filed Form 8857. Hand r block com After the 3-year period, but within 2 years from the time you paid the tax The tax you paid within 2 years immediately before you filed Form 8857. Hand r block com Filled-in Form 8857 This part explains how Janie Boulder fills out Form 8857 to request innocent spouse relief. Hand r block com Janie and Joe Boulder filed a joint tax return for 2007. Hand r block com They claimed one dependency exemption for their son Michael. Hand r block com Their return was adjusted by the IRS because Joe did not report a $5,000 award he won that year. Hand r block com Janie did not know about the award when the return was filed. Hand r block com They agreed to the adjustment but could not pay the additional amount due of $815 ($650 tax + $165 penalty and interest). Hand r block com Janie and Joe were divorced on May 13, 2009. Hand r block com In February 2010, Janie filed her 2009 federal income tax return as head of household. Hand r block com She expected a refund of $1,203. Hand r block com In May 2010, she received a notice informing her that the IRS had offset her refund against the $815 owed on her joint 2007 income tax return and that she had a right to file Form 8857. Hand r block com Janie applies the conditions listed earlier under Innocent Spouse Relief to see if she qualifies for relief. Hand r block com Janie meets the first and second conditions because the joint tax return they filed has an understated tax due to Joe's erroneous item. Hand r block com Janie believes she meets the third condition. Hand r block com She did not know about the award and had no reason to know about it because of the secretive way Joe conducted his financial affairs. Hand r block com Janie believes she meets the fourth condition. Hand r block com She believes it would be unfair to be held liable for the tax because she did not benefit from the award. Hand r block com Joe spent it on personal items for his use only. Hand r block com Because Janie believes she qualifies for innocent spouse relief, she first completes Part I of Form 8857 to determine if she should file the form. Hand r block com In Part I, she makes all entries under the Tax Year 1 column because she is requesting relief for only one year. Hand r block com Part I Line 1. Hand r block com   She enters “2007” on line 1 because this is the tax year for which she is requesting relief. Hand r block com Line 2. Hand r block com   She checks the box because she wants a refund. Hand r block com Note. Hand r block com Because the IRS used her individual refund to pay the tax owed on the joint tax return, she does not need to provide proof of payment. Hand r block com Line 3. Hand r block com   She checks the “No” box because the IRS did not use her share of a joint refund to pay Joe's past-due debts. Hand r block com Line 4. Hand r block com   She checks the “Yes” box because she filed a joint tax return for tax year 2007. Hand r block com Line 5. Hand r block com   She skips this line because she checked the “Yes” box on line 4. Hand r block com Part II Line 6. Hand r block com   She enters her name, address, social security number, county, and best daytime phone number. Hand r block com Part III Line 7. Hand r block com   She enters Joe's name, address, social security number, and best daytime phone number. Hand r block com Line 8. Hand r block com   She checks the “divorced since” box and enters the date she was divorced as “05/13/2009. Hand r block com ” She attaches a copy of her entire divorce decree (not Illustrated) to the form. Hand r block com Line 9. Hand r block com   She checks the box for “High school diploma, equivalent, or less,” because she had completed high school when her 2007 joint tax return was filed. Hand r block com Line 10. Hand r block com   She checks the “No” box because she was not a victim of spousal abuse or domestic violence. Hand r block com Line 11. Hand r block com   She checks the “No” box because neither she nor Joe incurred any large expenses during the year for which she wants relief. Hand r block com Line 12. Hand r block com   She checks the “Yes” box because she signed the 2007 joint tax return. Hand r block com Line 13. Hand r block com   She checks the “No” box because she did not have a mental or physical condition when the return was filed and does not have one now. Hand r block com Part IV Line 14. Hand r block com   Because she was not involved in preparing the return, she checks the box, “You were not involved in preparing the returns. Hand r block com ” Line 15. Hand r block com   She checks the box, “You did not know anything was incorrect or missing” because she did not know that Joe had received a $5,000 award. Hand r block com She explains this in the space provided. Hand r block com Line 16. Hand r block com   She checks the box, “You knew that person had income” because she knew Joe had income from wages. Hand r block com She also lists Joe's income. Hand r block com Under “Type of Income” she enters “wages. Hand r block com ” Under “Who paid it to that person,” she enters the name of Joe's employer, “Allied. Hand r block com ” Under “Tax Year 1” she enters the amount of Joe's wages, “$40,000. Hand r block com ” Because she is only requesting relief for one tax year, she leaves the entry spaces for “Tax Year 2” and “Tax Year 3” blank. Hand r block com Line 17. Hand r block com   She checks the “No” box because she did not know any amount was owed to the IRS when the 2007 return was signed. Hand r block com Line 18. Hand r block com   She checks the “No” box because, when the return was signed, she was not having financial problems. Hand r block com Line 19. Hand r block com   She checks the box, “You were not involved in handling money for the household” because Joe handled all the money for the household. Hand r block com She provides additional information in the space provided. Hand r block com Line 20. Hand r block com   She checks the “No” box because Joe has never transferred money or property to her. Hand r block com Part V Line 21. Hand r block com   She enters the number “1” on both the line for “Adults” and the line for “Children” because her current household consists of herself and her son. Hand r block com Line 22. Hand r block com   She enters her average monthly income for her entire household. Hand r block com Line 23. Hand r block com   She lists her assets, which are $500 for the fair market value of a car, $450 in her checking account, and $100 in her savings account. Hand r block com Signing and mailing Form 8857. Hand r block com    Janie signs and dates the form. Hand r block com She attaches the copy of her divorce decree (not illustrated) required by line 8. Hand r block com Finally, she sends the form to the IRS address or fax number shown in the instructions for Form 8857. Hand r block com This image is too large to be displayed in the current screen. Hand r block com Please click the link to view the image. Hand r block com Boulder's filled-in Form 8857 page 1 This image is too large to be displayed in the current screen. Hand r block com Please click the link to view the image. Hand r block com Boulder's filled-in Form 8857 page 2 This image is too large to be displayed in the current screen. Hand r block com Please click the link to view the image. Hand r block com Boulder's filled-in Form 8857 page 3 This image is too large to be displayed in the current screen. Hand r block com Please click the link to view the image. Hand r block com Boulder's filled-in Form 8857 page 4 Flowcharts The following flowcharts provide a quick way for determining whether you may qualify for relief. Hand r block com But do not rely on these flowcharts alone. Hand r block com Also read the earlier discussions. Hand r block com Figure A. Hand r block com Do You Qualify for Innocent Spouse Relief? Please click here for the text description of the image. Hand r block com "Do You Qualify for Innocent Spouse Relief?" Figure B. Hand r block com Do You Qualify for Separation of Liability Relief? Please click here for the text description of the image. Hand r block com "Do You Qualify for Separation of Liability Relief?" Figure C. Hand r block com Do You Qualify for Equitable Relief? This image is too large to be displayed in the current screen. Hand r block com Please click the link to view the image. Hand r block com "Do You Qualify for Equitable Relief?" Prev  Up  Next   Home   More Online Publications
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Tax Relief for Victims of Hurricane Irene in New Jersey

E-file to Remain Open for Hurricane Irene Victims through Oct. 31

Updated 9/7/11 to add the following counties: Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Hudson, Hunterdon, Mercer, Middlesex, Monmouth, Ocean, Salem, Sussex, Union and Warren.

NJ-2011-42, Sept. 1, 2011

MOUNTAINSIDE, N.J. — Victims of Hurricane Irene that began on Aug. 27, 2011 in parts of New Jersey may qualify for tax relief from the Internal Revenue Service.

The President has declared the following counties a federal disaster area: Atlantic, Bergen, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Hudson, Hunterdon, Mercer, Middlesex, Monmouth, Morris, Ocean, Passaic, Salem, Somerset, Sussex, Union and Warren. Individuals who reside or have a business in these counties may qualify for tax relief.

The declaration permits the IRS to postpone certain deadlines for taxpayers who reside or have a business in the disaster area. For instance, certain deadlines falling on or after Aug. 27, and on or before Oct. 31, have been postponed to Oct. 31, 2011. This includes corporations and other businesses that previously obtained an extension until Sept. 15 to file their 2010 returns, and individuals and businesses that received a similar extension until Oct. 17. It also includes the estimated tax payment for the third quarter, normally due Sept. 15.  

In addition, the IRS is waiving the failure-to-deposit penalties for employment and excise tax deposits due on or after Aug. 27, and on or before Sept. 12, as long as the deposits are made by Sept. 12, 2011.

If an affected taxpayer receives a penalty notice from the IRS, the taxpayer should call the telephone number on the notice to have the IRS abate any interest and any late filing or late payment penalties that would otherwise apply. Penalties or interest will be abated only for taxpayers who have an original or extended filing, payment or deposit due date, including an extended filing or payment due date, that falls within the postponement period.

The IRS automatically identifies taxpayers located in the covered disaster area and applies automatic filing and payment relief. But affected taxpayers who reside or have a business located outside the covered disaster area must call the IRS disaster hotline at 1-866-562-5227 to request this tax relief.

Covered Disaster Area

The counties listed above constitute a covered disaster area for purposes of Treas. Reg. § 301.7508A-1(d)(2) and are entitled to the relief detailed below.

Affected Taxpayers

Taxpayers considered to be affected taxpayers eligible for the postponement of time to file returns, pay taxes and perform other time-sensitive acts are those taxpayers listed in Treas. Reg. § 301.7508A-1(d)(1), and include individuals who live, and businesses whose principal place of business is located, in the covered disaster area. Taxpayers not in the covered disaster area, but whose records necessary to meet a deadline listed in Treas. Reg. § 301.7508A-1(c) are in the covered disaster area, are also entitled to relief. In addition, all relief workers affiliated with a recognized government or philanthropic organization assisting in the relief activities in the covered disaster area and any individual visiting the covered disaster area who was killed or injured as a result of the disaster are entitled to relief.

Grant of Relief

Under section 7508A, the IRS gives affected taxpayers until Oct. 31 to file most tax returns (including individual, corporate, and estate and trust income tax returns; partnership returns, S corporation returns, and trust returns; estate, gift, and generation-skipping transfer tax returns; and employment and certain excise tax returns), or to make tax payments, including estimated tax payments, that have either an original or extended due date occurring on or after Aug. 27 and on or before Oct. 31.

The IRS also gives affected taxpayers until Oct. 31 to perform other time-sensitive actions described in Treas. Reg. § 301.7508A-1(c)(1) and Rev. Proc. 2007-56, 2007-34 I.R.B. 388 (Aug. 20, 2007), that are due to be performed on or after Aug. 27 and on or before Oct. 31.

This relief also includes the filing of Form 5500 series returns, in the manner described in section 8 of Rev. Proc. 2007-56. The relief described in section 17 of Rev. Proc. 2007-56, pertaining to like-kind exchanges of property, also applies to certain taxpayers who are not otherwise affected taxpayers and may include acts required to be performed before or after the period above.

The postponement of time to file and pay does not apply to information returns in the W-2, 1098, 1099 series, or to Forms 1042-S or 8027. Penalties for failure to timely file information returns can be waived under existing procedures for reasonable cause. Likewise, the postponement does not apply to employment and excise tax deposits. The IRS, however, will abate penalties for failure to make timely employment and excise tax deposits due on or after Aug. 27 and on or before Sept. 12 provided the taxpayer makes these deposits by Sept. 12.

Casualty Losses

Affected taxpayers in a federally declared disaster area have the option of claiming disaster-related casualty losses on their federal income tax return for either this year or last year. Claiming the loss on an original or amended return for last year will get the taxpayer an earlier refund, but waiting to claim the loss on this year’s return could result in a greater tax saving, depending on other income factors.

Individuals may deduct personal property losses that are not covered by insurance or other reimbursements. For details, see Form 4684 and its instructions.
Affected taxpayers claiming the disaster loss on last year’s return should put the Disaster Designation “New Jersey/Hurricane Irene” at the top of the form so that the IRS can expedite the processing of the refund.

Other Relief

The IRS will waive the usual fees and expedite requests for copies of previously filed tax returns for affected taxpayers. Taxpayers should put the assigned Disaster Designation in red ink at the top of Form 4506, Request for Copy of Tax Return, or Form 4506-T, Request for Transcript of Tax Return, as appropriate, and submit it to the IRS.

Affected taxpayers who are contacted by the IRS on a collection or examination matter should explain how the disaster impacts them so that the IRS can provide appropriate consideration to their case.

Taxpayers may download forms and publications from the official IRS website, irs.gov, or order them by calling 1-800-TAX-FORM (1-800-829-3676). The IRS toll-free number for general tax questions is 1-800-829-1040.

Related Information

Page Last Reviewed or Updated: 24-Mar-2014

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