Attachment to Form 8857, Request for Innocent Spouse Relief
Requesting spouse: [Current name] SSN: [SSN]
Person on line 6: [Name of spouse or former spouse]
Tax years (line 3): [Years] Type of liability: [understatement (deficiency) assessed [date] / unpaid tax shown on the return / both] Balance: [Amount per transcript]
Each page of this statement shows the requesting spouse’s name and SSN. Paragraph numbers refer to lines on Form 8857 (Rev. June 2021).
A. Relief requested
The requesting spouse requests relief under IRC 6015(b) [and / or] 6015(c) for the understatement for [years], and in the alternative equitable relief under IRC 6015(f) for [the understatement and the unpaid tax for [years]]. [If unpaid tax only: Because the liability is tax shown on the return and not paid, relief is requested under IRC 6015(f) only.] The requesting spouse asks that each year be considered separately.
B. Timeliness
[For (b) and (c): The first collection activity against the requesting spouse was [the CDP levy notice dated [date] / the offset of the requesting spouse's [year] refund on [date] / none to date]. This request is filed within two years of that date.] For IRC 6015(f), the request is timely under IRC 6015(f)(2) because [the collection period for the unpaid liability has not expired (earliest CSED [date]) / the payments for which a refund is requested were made on [dates], within the period for a refund claim under IRC 6511].
C. Threshold conditions (Rev. Proc. 2013-34, sec. 4.01)
- A joint return was filed for each year on [dates]. [If the requesting spouse disputes intending to file jointly or alleges a forged signature, say so here and at line 11.]
- [Relief under (b) and (c) is requested above; equitable relief is requested to the extent (b) and (c) do not apply.]
- The request is timely as stated in section B.
- No assets were transferred between the spouses as part of a fraudulent scheme.
- [The person on line 6 did not transfer disqualified assets to the requesting spouse (line 19). / The following assets were transferred on [dates] for [reason, e.g. under the divorce decree]; they are not disqualified assets because [reason], or relief is sought for the liability in excess of their value.]
- The requesting spouse did not knowingly participate in filing a fraudulent return.
- The liability is attributable to [the person on line 6's [wages / self-employment income / IRA distribution / disallowed deductions] (Exhibit [number], examination report or transcript)]. [If partly attributable to the requesting spouse: the portion attributable to the requesting spouse is $[amount]; relief is requested for the remainder, or in full under the exception for [community property attribution / nominal ownership / misappropriation of funds intended for the tax / abuse / fraud of the other spouse], because [facts].]
D. Streamlined determination (sec. 4.02)
The requesting spouse meets all three streamlined elements: (1) marital status: [divorced since [date] / legally separated since [date] / widowed since [date] and not an heir to an estate with sufficient assets / not a member of the same household at any time in the 12 months ending [date] (line 7, decree or agreement attached)]; (2) economic hardship as shown in section E(b) below; (3) knowledge: [the requesting spouse did not know or have reason to know of the understatement / that the person on line 6 would not or could not pay the tax shown on the return, as stated in section E(c)]. [If the streamlined test fails on one element, delete this paragraph and rely on section E.]
E. Factors (sec. 4.03)
(a) Marital status (line 7). [Current status with dates; attach the entire divorce decree, separation agreement or death certificate as the form requires.]
(b) Economic hardship (Part IV, lines 20 to 22). [Household size [N]; monthly income $[amount]; reasonable basic living expenses $[amount] by category; assets listed on line 20 with loan balances. State whether income is below 250 percent of the federal poverty guidelines for the household size, or whether income exceeds expenses by $300 or less, and whether any asset could pay the tax while meeting basic living expenses. Attach pay stubs, bank statements, lease or mortgage statement, medical bills.]
(c) Knowledge or reason to know (Part III, lines 12 to 18). [Understatement: what the requesting spouse knew of the item when the return was filed; education (line 8); involvement in preparing the return (line 12); knowledge of the other spouse's income and business (line 13); deceit or evasiveness by the other spouse; involvement in household finances and access to accounts (line 17); any lavish or unusual spending compared with prior years (line 18). Underpayment: what the requesting spouse was told about how the balance would be paid (line 15), whether an installment agreement request was filed within 90 days of the due date or filing, and what the requesting spouse knew of the other spouse's financial problems, bankruptcies or IRS history (line 16).]
[Abuse or financial control (Part V, line 23): describe when the abuse began, its form (physical, psychological, sexual, emotional or financial, including control, isolation or intimidation), and how it prevented the requesting spouse from questioning items on the return or the payment of the tax for fear of retaliation; or describe how the person on line 6 restricted access to financial information. Attach protective orders, police or medical records, counselor letters or witness statements. Delete if not applicable.]
(d) Legal obligation. [The divorce decree or agreement dated [date], paragraph [number], makes the person on line 6 solely responsible for the [year] federal income tax (Exhibit [number]). When the decree was signed the requesting spouse did not know or have reason to know that the person on line 6 would not pay, because [facts]. / The decree is silent on the tax.]
(e) Significant benefit. [The requesting spouse received no benefit beyond normal support from the unpaid tax or the omitted income: [facts about living standard, who controlled spending, where the funds went]. / The person on line 6 alone benefited, by [facts].]
(f) Compliance. [The requesting spouse has filed [separate / joint] returns for [years] on time and paid the tax shown, or made a good faith effort: [facts, e.g. filed timely but could not pay because of the separation; installment agreement entered [date]]. Attach transcripts or copies.]
(g) Mental or physical health (line 9). [Condition, when it began, its effect at the time the returns were filed and now, and its economic impact. Attach a doctor's letter or records. Delete if not applicable.]
F. Refund (Part VII, line 25)
[The requesting spouse requests a refund of the following payments made from the requesting spouse's separate funds after July 22, 1998: [date, amount, source account, Exhibit]. No refund is claimed for withholding, estimated payments, payments with the return, joint payments or payments by the person on line 6. / No refund is requested.]
G. Additional information (Part VI, line 24)
[Other years filed jointly with the person on line 6 and their status; prior requests for relief; related proceedings (bankruptcy, divorce court orders on the tax, CDP hearing in which this request was raised); anything the requesting spouse is afraid to put in writing but will discuss (line 10).]
H. Exhibits
- Exhibit 1: divorce decree, separation agreement or death certificate (entire document)
- Exhibit 2: examination report, notice of deficiency or account transcripts for each year
- Exhibit 3: income and expense documents for Part IV
- Exhibit 4: [bank statements, returns for later years, correspondence showing deceit or control]
- Exhibit 5: [abuse documentation / medical records]
- Exhibit 6: proof of separate payments for which a refund is requested
- Form 2848 listing Form 8857 and innocent spouse relief on line 3
The requesting spouse understands that the IRS must contact the person on line 6, and asks that the requesting spouse’s current name, address, telephone numbers, employer, income and assets not be disclosed to that person.
Under penalties of perjury, I declare that I have examined this statement and the accompanying documents, and to the best of my knowledge and belief, they are true, correct, and complete.
[Signature of requesting spouse (handwritten; the IRS does not accept electronic, digital or stamped signatures on Form 8857)] [Date]
When to attach this statement
Form 8857 (Rev. June 2021) is the request; the instructions say to attach more pages where the answer needs room and to “Be sure to write your name and SSN on the top of all pages you attach.” This statement is that attachment. It is organized by the IRS’s own decision sequence under Rev. Proc. 2013-34 rather than by the form’s line order, and each section cross-references the form line so the examiner at the Cincinnati Centralized Innocent Spouse Operation can tie them together. For the law, the forms of relief and how CCISO works a case, see innocent spouse relief; for the form itself, Form 8857.
IRM 25.15.18.5.1.2 lists what screening checks first: a valid signature (“The request must be signed under penalty of perjury,” and “Electronic, digitally signed, or stamped signatures are not valid”), the tax years, and information explaining the request. A representative may sign only with a Form 2848 that shows Form 8857 permissions. The statement repeats the perjury declaration under the client’s own signature so the attachment stands on the same footing as the form.
The three reliefs and the deadline for each
| Relief | Covers | Deadline | Refund |
|---|---|---|---|
| IRC 6015(b) | Understatement from the other spouse's erroneous items; no knowledge or reason to know; inequitable | 2 years after first collection activity against the requesting spouse | Yes, subject to IRC 6511 |
| IRC 6015(c) | Understatement allocated between spouses who are divorced, legally separated or living apart 12 months; defeated only by actual knowledge | 2 years after first collection activity | No (IRC 6015(g)(3)) |
| IRC 6015(f) | Understatement or unpaid tax where (b) and (c) do not apply and liability would be inequitable | Collection period open (unpaid) or refund period open (paid), IRC 6015(f)(2) | Yes, separate payments only |
Section A of the statement requests every relief that fits, in the alternative, because the IRS considers (b) and (c) before (f) and the form instructions say equitable relief is the only type available for an unpaid tax. Section B states the deadline facts. The two-year rule no longer applies to equitable relief: Notice 2011-70 announced that individuals may request relief under section 6015(f) “without regard to when the first collection activity was taken,” so long as the IRC 6502 collection period or IRC 6511 refund period is open, and Congress wrote that rule into IRC 6015(f)(2) in 2019. Rev. Proc. 2013-34 sec. 4.01(3) states the same test. If an examiner cites the two-year rule in Treas. Reg. 1.6015-5(b) against an equitable relief request, cite the statute. The CSED page explains how to confirm the collection period is open.
The Rev. Proc. 2013-34 structure the statement follows
Threshold conditions (sec. 4.01). Seven conditions must be met before the IRS weighs anything: a joint return, relief unavailable under (b) and (c), a timely request, no fraudulent transfers, no disqualified asset transfers (with abuse and lack-of-knowledge exceptions), no knowing participation in a fraudulent return, and a liability attributable to the other spouse. The attribution condition has five exceptions the statement lets you invoke: community property attribution, nominal ownership, misappropriation of funds intended for the tax, abuse, and the other spouse’s fraud.
Streamlined determination (sec. 4.02). The IRS grants relief without weighing factors when the requesting spouse is no longer married to the other spouse, would suffer economic hardship, and did not know or have reason to know of the understatement or that the tax would not be paid. Abuse or financial control satisfies the knowledge element even where the spouse knew. Section D claims this where it fits; a spouse who fails one element is still considered under sec. 4.03.
The factors (sec. 4.03). The revenue procedure says the list is not exclusive and that “In evaluating a claim for relief, no one factor or a majority of factors necessarily determines the outcome.” Section E takes them in order with the facts and documents each one calls for.
| Factor | What weighs in favor | Facts and documents for the statement |
|---|---|---|
| (a) Marital status | Divorced, legally separated, widowed and not an heir to a sufficient estate, or 12 months apart | Line 7; the entire decree or agreement |
| (b) Economic hardship | Paying would leave the spouse unable to pay reasonable basic living expenses; income below 250% of the poverty guidelines, or income exceeding expenses by $300 or less, without assets to pay | Part IV; pay stubs, bank statements, bills |
| (c) Knowledge or reason to know | No knowledge or reason to know of the item, or a reasonable expectation the tax would be paid; abuse or financial control flips the factor | Part III lines 12 to 18; Part V; installment agreement request filed within 90 days |
| (d) Legal obligation | The other spouse has the sole obligation under the decree, unless the requesting spouse knew the other would not pay | Decree paragraph |
| (e) Significant benefit | No benefit beyond normal support; the other spouse controlled spending | Spending records, living standard |
| (f) Compliance | Compliant returns for later years, or a good faith effort | Transcripts for later years |
| (g) Mental or physical health | Poor health when the return was filed or when relief was requested | Line 9; medical letter |
Two definitions from the revenue procedure are worth quoting in the statement where they help. On hardship: “an economic hardship exists if satisfaction of the tax liability in whole or in part will cause the requesting spouse to be unable to pay reasonable basic living expenses.” On benefit: “A significant benefit is any benefit in excess of normal support.” For underpayment cases, the knowledge factor carries a presumption: “A reasonable expectation of payment will be presumed if the spouses submitted a request for an installment agreement to pay the tax reported as due on the return,” filed within 90 days of the payment due date or the filing, so a copy of that request is a key exhibit.
Why everything goes in now
IRC 6015(e)(7) provides that Tax Court review is de novo but “shall be based upon” “the administrative record established at the time of the determination” and “any additional newly discovered or previously unavailable evidence.” The form instructions draw the conclusion: “Therefore, it is important that you provide us with information you want us or the Tax Court to consider.” The history explains the rule. In Porter v. Commissioner, 132 T.C. 203 (2009), the Tax Court announced that “we now apply a de novo standard of review as well as a de novo scope of review” in section 6015(f) cases, after holding in an earlier opinion in the same case that it could consider evidence outside the administrative record. The 2019 statute kept the de novo standard and narrowed the scope, so a document the client had but did not send to CCISO or Appeals may be excluded at trial. Sections E and H of the statement exist to put the decree, the bank records, the medical evidence and the abuse documentation into the record before the preliminary determination.
The other spouse will see most of it. IRM 25.15.3.4: “The NRS must receive notice of, and an opportunity to participate in, any proceeding with respect to an innocent spouse relief request.” That spouse receives Letter 3284-C with Form 12508 and 30 days to answer, is told of the preliminary determination, and may protest a grant. The form instructions warn that “By law, the IRS must contact your spouse or former spouse.” IRM 25.15.3.4.1 bars disclosure of the requesting spouse’s new last name, location, telephone number, employment, income or assets, which the closing paragraph of the statement invokes; redact those details from exhibits as well. Refund claims follow IRM 25.15.3.9.4.3: separate payments after July 22, 1998 traceable to the requesting spouse’s own funds may be refunded, not withholding, estimated payments, payments with the return or joint payments, and “Generally the Form 8857, Request for Innocent Spouse Relief is treated as a claim for refund,” subject to IRC 6511.
Where to send it and what happens next
- Mail Form 8857 and the statement to Internal Revenue Service, P.O. Box 120053, Covington, KY 41012, or by private delivery service to 7940 Kentucky Drive, Stop 840F, Florence, KY 41042, or fax to 855-233-8558 (Form 8857 instructions, Rev. June 2021). Send it there even if an examiner, revenue officer or Appeals officer has the case.
- If a notice of deficiency has been issued, also petition the Tax Court within the 90 days and raise relief there; the instructions say the petition period is not extended while the IRS considers the request. See Tax Court petitions.
- CCISO screens the request, acknowledges it with Letter 3659-C, and contacts the other spouse. Answer every follow-up request; each answer joins the administrative record.
- A preliminary determination (Letter 3661-C) issues to the requesting spouse; either spouse may protest to Appeals within 30 days using Form 12509 or a written protest. See the Independent Office of Appeals.
- After the final determination, IRC 6015(e)(1)(A) allows a Tax Court petition no later than the 90th day after it is mailed, or at any time after six months have passed without a determination. While the request is pending, IRC 6015(e)(1)(B) bars levy against the requesting spouse for the years at issue, and the collection statute is suspended for that period plus 60 days.
Mistakes
- Thin answers in Part III. Knowledge is decided on those facts, and the Tax Court may be limited to this record.
- Holding the form for documents. The two-year clock for (b) and (c) usually starts with a CDP levy notice. File, then supplement.
- Claiming a refund under (c). IRC 6015(g)(3) bars it; use (b) or (f) for the paid amounts.
- Listing joint payments or withholding as refundable. Only separate payments traceable to the requesting spouse qualify.
- A Form 2848 without Form 8857 on line 3. The representative’s signature is then invalid and the request unprocessable.
- Personal details in the exhibits. The IRS will not disclose the requesting spouse’s location and employer, but it cannot redact what you leave in a shared document.
Questions practitioners ask
Does the statement replace answering the Form 8857 questions?
No. Complete every line on the form and use the statement to expand the answers, cross-referenced by line number, as the instructions invite.
Can relief be raised in a CDP hearing instead?
Yes; spousal defenses are an issue in a CDP or equivalent hearing, and Form 12153 says to complete Form 8857 for the request to be considered. CCISO then holds its determination so Appeals can decide it in the Notice of Determination. The deadlines in IRC 6015 still apply.
What if the requesting spouse is still married and living with the other spouse?
Marital status is neutral rather than against relief under sec. 4.03(2)(a), but the streamlined test cannot be met. The compliance factor then looks at whether joint returns filed after the request are compliant.
Is a divorce decree assigning the tax to the other spouse enough?
It weighs in favor as the legal obligation factor, but the form itself notes that a decree stating the former spouse must pay all taxes does not necessarily mean the requesting spouse qualifies. It is one factor.
Does the IRS tell the other spouse where my client lives?
No. IRM 25.15.3.4.1 bars disclosure of the requesting spouse's new last name, location, telephone number, employment, income or assets. Other information used in the determination can be shared.