What is joint and several liability?
Many married taxpayers choose to file a joint tax return because of certain benefits this filing status allows. Both taxpayers
are jointly and
individually responsible for the tax and any interest or penalty due on the joint return even if they later divorce. This
is true even if a divorce
decree states that a former spouse will be responsible for any amounts due on previously filed joint returns. One spouse may
be held responsible for
all the tax due.
How can I get relief from joint and several liability?
Relief falls into three categories: “innocent spouse relief,” “separation of liability,” and “equitable relief.” Each of these types
of relief have different requirements. They are explained separately below.
What are the rules for innocent spouse relief?
To qualify for innocent spouse relief, you must meet all of the following conditions.
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You must have filed a joint return which has an understatement of tax.
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The understatement of tax must be due to erroneous items of your spouse (or former spouse).
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You must establish that at the time you signed the joint return, you did not know, and had no reason to know, that there was
an
understatement of tax.
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Taking into account all of the facts and circumstances, it would be unfair to hold you liable for the understatement of tax.
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You must request relief within 2 years after the date on which the IRS first began collection activity against you after July
22,
1998.
What are “erroneous items”?
Erroneous items are any deductions, credits, or bases that are incorrectly stated on the return, and any income that is not
properly reported on
the return.
What is an “understatement of tax”?
An understatement of tax is generally the difference between the total amount of tax that should have been shown on your return
and the amount of
tax that was actually shown on your return. For example, you reported total tax on your 2001 return of $2,500. IRS determined
in an audit of your 2001
return that the total tax should be $3,000. You have a $500 understatement of tax.
Will I qualify for innocent spouse relief in any situation where there is an understatement of tax?
No. There are many situations in which you may owe tax that is related to your spouse, but not be eligible for innocent spouse
relief. For example,
you and your spouse file a joint return on which you report $10,000 of income and deductions, but you knew that your spouse
was not reporting $5,000
of dividends. You are not eligible for innocent spouse relief because you have knowledge of the understatement.
What are the rules for separation of liability?
Under this type of relief, you allocate (separate) the understatement of tax (plus interest and penalties) on your joint return
between you and
your spouse. The understatement of tax allocated to you is generally the amount you are responsible for. To qualify for separation
of liability, you
must have filed a joint return and meet either of the following requirements at the time you file Form 8857.
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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. (Under this rule, you are no longer married if you are widowed.)
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You were not a member of the same household as the spouse with whom you filed the joint return at any time during the 12-month
period ending
on the date you file Form 8857.
Why would a request for separation of liability be denied?
Even if you meet the requirements listed earlier, a request for separation of liability will not be granted in the following
situations.
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The IRS proves that you and your spouse transferred assets to one another as part of a fraudulent scheme.
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The IRS proves that at the time you signed your joint return, you had actual knowledge of any erroneous items giving rise
to the deficiency
that are allocable to your spouse.
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Your spouse (or former spouse) transferred property to you to avoid tax or the payment of tax.
What are the rules for equitable relief?
Equitable relief is only available if you meet all of the following conditions.
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You do not qualify for innocent spouse relief, relief by separation of liability, or relief from liability arising from community
property
law.
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The IRS determines that it is unfair to hold you liable for the understatement of tax taking into account all the facts and
circumstances.
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You and your spouse (or former spouse) did not transfer assets to one another as a part of a fraudulent scheme.
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Your spouse (or former spouse) did not transfer assets to you for the main purpose of avoiding tax or the payment of tax.
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You did not file or fail to file your return with the intent to commit fraud.
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You did not pay the tax. However, see Refunds, earlier under Equitable Relief, for exceptions.
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The income tax liability for which you seek relief is attributable to your spouse (or former spouse) with whom you filed the
joint return.
See exceptions to this condition under Conditions for Getting Equitable Relief, earlier.
Note. Unlike innocent spouse relief or separation of liability, if you qualify for equitable relief, you can also get relief from
an
underpayment of tax. (An underpayment of tax is an amount properly shown on the return, but not paid.)
How do state community property laws affect my ability to qualify for relief?
Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
Generally, community
property laws require you to allocate community income and expenses equally between both spouses. 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.
How do I request relief?
File Form 8857, Request for Innocent Spouse Relief, to ask the IRS for relief. You only need to file one Form 8857 even if you are
requesting relief for more than one year.
If I am denied innocent spouse relief, must I reapply if I believe I might qualify under one of the other two provisions?
No. Generally once you receive a final determination of relief for a tax year, you may not reapply. When you file Form 8857,
you should request all
of the types of relief for which you think you may be eligible. Also, if you request innocent spouse relief or separation
of liability, the IRS will
consider whether any of the other provisions would apply.
When should I file Form 8857?
If you are requesting innocent spouse relief, separation of liability, or equitable relief, file Form 8857 no later than 2
years after the date on
which the IRS first began collection activities against you after July 22, 1998. If you are requesting relief from liability
arising from community
property law, see How and When To Request Relief under Community Property Laws, earlier, for when to file Form 8857.
Where should I file Form 8857?
Follow the instructions on Form 8857.
I am currently undergoing an examination of my return. How do I request innocent spouse relief?
File Form 8857 with the employee assigned to examine your return.
What if the IRS has given me notice that it will levy my account for the tax liability and I decide to request relief?
Generally, collection activity is suspended from the date the request is received by the Service until the final determination
is made.
What is “injured spouse relief”?
Injured spouse relief is different from innocent spouse relief. When a joint return is filed and the refund is used to pay
one spouse's past-due
child and/or spousal support, a past-due federal debt, or past-due state income tax, the other spouse may be considered an
injured spouse. The injured
spouse can claim his or her share of the refund using Form 8379, Injured Spouse Claim and Allocation. To be considered an injured spouse,
you must have:
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Filed a joint return,
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Received income (such as wages, interest, etc.),
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Made tax payments (such as withholding or estimated tax payments), or claimed the earned income credit or other refundable
credit,
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Reported the income and tax payments on the joint return, and
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An overpayment, all or part of which was applied to the past-due amount of the other spouse.
You can get help with unresolved tax issues, order free publications and forms, ask tax questions, and get more information
from the IRS in several
ways. By selecting the method that is best for you, you will have quick and easy access to tax help.
Contacting your Taxpayer Advocate.
If you have attempted to deal with an IRS problem unsuccessfully, you should contact your Taxpayer Advocate.
The Taxpayer Advocate independently represents your interests and concerns within the IRS by protecting your rights
and resolving problems that
have not been fixed through normal channels. While Taxpayer Advocates cannot change the tax law or make a technical tax decision,
they can clear up
problems that resulted from previous contacts and ensure that your case is given a complete and impartial review.
To contact your Taxpayer Advocate:
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Call the Taxpayer Advocate toll free at
1–877–777–4778.
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Call, write, or fax the Taxpayer Advocate office in your area.
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Call 1–800–829–4059 if you are a
TTY/TDD user.
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Visit the website at www.irs.gov/advocate.
For more information, see Publication 1546,
The Taxpayer Advocate Service of the IRS.
Free tax services.
To find out what services are available, get Publication 910,
Guide to Free Tax Services. It contains a list of free tax publications
and an index of tax topics. It also describes other free tax information services, including tax education and assistance
programs and a list of
TeleTax topics.
Internet. You can access the IRS website 24 hours a day, 7 days a week at www.irs.gov to:
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E-file. Access commercial tax preparation and e-file services available for free to eligible taxpayers.
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Check the amount of advance child tax credit payments you received in 2003.
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Check the status of your 2003 refund. Click on “Where's My Refund” and then on “Go Get My Refund Status.” Be sure to wait at least
6 weeks from the date you filed your return (3 weeks if you filed electronically) and have your 2003 tax return available
because you will need to
know your filing status and the exact whole dollar amount of your refund.
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Download forms, instructions, and publications.
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Order IRS products on-line.
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See answers to frequently asked tax questions.
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Search publications on-line by topic or keyword.
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Figure your withholding allowances using our Form W-4 calculator.
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Send us comments or request help by e-mail.
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Sign up to receive local and national tax news by e-mail.
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Get information on starting and operating a small business.
You can also reach us using File Transfer Protocol at ftp.irs.gov.
Fax. You can get over 100 of the most requested forms and instructions 24 hours a day, 7 days a week, by fax. Just call
703–368–9694 from your fax machine. Follow the directions from the prompts. When you order forms, enter the catalog number for
the form you need. The items you request will be faxed to you.
For help with transmission problems, call 703–487–4608.
Long-distance charges may apply.
Phone. Many services are available by phone.
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Ordering forms, instructions, and publications. Call 1–800–829–3676 to order current-year forms,
instructions, and publications and prior-year forms and instructions. You should receive your order within 10 days.
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Asking tax questions. Call the IRS with your tax questions at 1–800–829–1040.
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Solving problems. You can get face-to-face help solving tax problems every business day in IRS Taxpayer Assistance Centers. An
employee can explain IRS letters, request adjustments to your account, or help you set up a payment plan. Call your local
Taxpayer Assistance Center
for an appointment. To find the number, go to www.irs.gov or look in the phone book under “United States Government, Internal Revenue
Service.”
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TTY/TDD equipment. If you have access to TTY/TDD equipment, call 1–800–829– 4059 to ask tax or
account questions or to order forms and publications.
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TeleTax topics. Call 1–800–829–4477 to listen to pre-recorded messages covering various tax
topics.
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Refund information. If you would like to check the status of your 2003 refund, call 1–800–829 4477 for
automated refund information and follow the recorded instructions or call 1–800–829–1954. Be sure to wait at least 6
weeks from the date you filed your return (3 weeks if you filed electronically) and have your 2003 tax return available because
you will need to know
your filing status and the exact whole dollar amount of your refund.
Evaluating the quality of our telephone services. To ensure that IRS representatives give accurate, courteous, and professional answers,
we use several methods to evaluate the quality of our telephone services. One method is for a second IRS representative to
sometimes listen in on or
record telephone calls. Another is to ask some callers to complete a short survey at the end of the call.
Walk-in. Many products and services are available on a walk-in basis.
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Products. You can walk in to many post offices, libraries, and IRS offices to pick up certain forms, instructions, and
publications. Some IRS offices, libraries, grocery stores, copy centers, city and county government offices, credit unions,
and office supply stores
have a collection of products available to print from a CD-ROM or photocopy from reproducible proofs. Also, some IRS offices
and libraries have the
Internal Revenue Code, regulations, Internal Revenue Bulletins, and Cumulative Bulletins available for research purposes.
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Services. You can walk in to your local Taxpayer Assistance Center every business day to ask tax questions or get help with a tax
problem. An employee can explain IRS letters, request adjustments to your account, or help you set up a payment plan. You
can set up an appointment by
calling your local Center and, at the prompt, leaving a message requesting Everyday Tax Solutions help. A representative will
call you back within 2
business days to schedule an in-person appointment at your convenience. To find the number, go to www.irs.gov or look in the phone book
under “United States Government, Internal Revenue Service.”
Mail. You can send your order for forms, instructions, and publications to the Distribution Center nearest to you and receive a
response
within 10 workdays after your request is received. Use the address that applies to your part of the country.
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Western part of U.S.:
Western Area Distribution Center
Rancho Cordova, CA 95743–0001
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Central part of U.S.:
Central Area Distribution Center
P.O. Box 8903
Bloomington, IL 61702–8903
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Eastern part of U.S. and foreign addresses:
Eastern Area Distribution Center
P.O. Box 85074
Richmond, VA 23261–5074
CD-ROM for tax products. You can order IRS Publication 1796, Federal Tax Products on CD-ROM, and obtain:
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Current-year forms, instructions, and publications.
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Prior-year forms and instructions.
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Frequently requested tax forms that may be filled in electronically, printed out for submission, and saved for recordkeeping.
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Internal Revenue Bulletins.
Buy the CD-ROM from National Technical Information Service (NTIS) on the Internet at www.irs.gov/cdorders for $22 (no handling fee) or
call 1–877–233–6767 toll free to buy the CD-ROM for $22 (plus a $5 handling fee). The first release is available in early
January and the final release is available in late February.
CD-ROM for small businesses. IRS Publication 3207, Small Business Resource Guide, is a must for every small business owner or
any taxpayer about to start a business. This handy, interactive CD contains all the business tax forms, instructions and publications
needed to
successfully manage a business. In addition, the CD provides an abundance of other helpful information, such as how to prepare
a business plan,
finding financing for your business, and much more. The design of the CD makes finding information easy and quick and incorporates
file formats and
browsers that can be run on virtually any desktop or laptop computer.
It is available in early April. You can get a free copy by calling 1–800–829–3676 or by visiting the website at
www.irs.gov/smallbiz.
