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Amend your taxes Publication 971 - Additional Material Table of Contents How To Get Tax HelpLow Income Taxpayer Clinics (LITCs). Amend your taxes Questions & AnswersThis section answers questions commonly asked by taxpayers about innocent spouse relief. Amend your taxes . Amend your taxes What is joint and several liability? . Amend your taxes How can I get relief from joint and several liability? . Amend your taxes What are the rules for innocent spouse relief? . Amend your taxes What are erroneous items? . Amend your taxes What is an understated tax? . Amend your taxes Will I qualify for innocent spouse relief in any situation where there is an understated tax? . Amend your taxes What are the rules for separation of liability relief? . Amend your taxes Why would a request for separation of liability relief be denied? . Amend your taxes What are the rules for equitable relief? . Amend your taxes How do state community property laws affect my ability to qualify for relief? . Amend your taxes How do I request relief? . Amend your taxes When should I file Form 8857? . Amend your taxes Where should I file Form 8857? . Amend your taxes I am currently undergoing an examination of my return. Amend your taxes How do I request innocent spouse relief? . Amend your taxes What if the IRS has given me notice that it will levy my account for the tax liability and I decide to request relief? . Amend your taxes What is injured spouse relief? . Amend your taxes What is joint and several liability? When you file a joint income tax return, the law makes both you and your spouse responsible for the entire tax liability. Amend your taxes This is called joint and several liability. Amend your taxes Joint and several liability applies not only to the tax liability you show on the return but also to any additional tax liability the IRS determines to be due, even if the additional tax is due to the income, deductions, or credits of your spouse or former spouse. Amend your taxes You remain jointly and severally liable for taxes, and the IRS still can collect from you, even if you later divorce and the divorce decree states that your former spouse will be solely responsible for the tax. Amend your taxes There are three types of relief for filers of joint returns: “innocent spouse relief,” “separation of liability relief,” and “equitable relief. Amend your taxes ” Each type has different requirements. Amend your taxes They are explained separately below. Amend your taxes To qualify for innocent spouse relief, you must meet all of the following conditions. Amend your taxes You must have filed a joint return which has an understated tax. Amend your taxes The understated tax must be due to erroneous items of your spouse (or former spouse). Amend your taxes 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 understated tax. Amend your taxes Taking into account all of the facts and circumstances, it would be unfair to hold you liable for the understated tax. Amend your taxes You must request relief within 2 years after the date on which the IRS first began collection activity against you after July 22, 1998. Amend your taxes 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. Amend your taxes You have an understated tax if the IRS determined that your total tax should be more than the amount actually shown on your return. Amend your taxes For example, you reported total tax on your 2008 return of $2,500. Amend your taxes IRS determined in an audit of your 2008 return that the total tax should be $3,000. Amend your taxes You have a $500 understated tax. Amend your taxes No. Amend your taxes There are many situations in which you may owe tax that is related to your spouse (or former spouse), but not be eligible for innocent spouse relief. Amend your taxes 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. Amend your taxes You are not eligible for innocent spouse relief because you have knowledge of the understated tax. Amend your taxes Under this type of relief, you allocate (separate) the understated tax (plus interest and penalties) on your joint return between you and your spouse (or former spouse). Amend your taxes The understated tax allocated to you is generally the amount you are responsible for. Amend your taxes To qualify for 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. Amend your taxes 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. Amend your taxes (Under this rule, you are no longer married if you are widowed. Amend your taxes ) 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. Amend your taxes In addition to the above requirements, you must file a Form 8857 within 2 years after the date on which the IRS first began collection activity against you after July 22, 1998. Amend your taxes Even if you meet the requirements listed earlier, a request for separation of liability relief will not be granted in the following situations. Amend your taxes The IRS proves that you and your spouse (or former spouse) transferred assets to one another as part of a fraudulent scheme. Amend your taxes 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 (or former spouse). Amend your taxes Your spouse (or former spouse) transferred property to you to avoid tax or the payment of tax. Amend your taxes Equitable relief is only available if you meet all of the following conditions. Amend your taxes You do not qualify for innocent spouse relief, separation of liability relief, or relief from liability arising from community property law. Amend your taxes You have an understated tax or underpaid tax. Amend your taxes See Note later. Amend your taxes You did not pay the tax. Amend your taxes However, see Refunds , earlier, for exceptions. Amend your taxes The IRS determines that it is unfair to hold you liable for the understated or underpaid tax taking into account all the facts and circumstances. Amend your taxes You and your spouse (or former spouse) did not transfer assets to one another as a part of a fraudulent scheme. Amend your taxes Your spouse (or former spouse) did not transfer property to you for the main purpose of avoiding tax or the payment of tax. Amend your taxes You did not file or fail to file your return with the intent to commit fraud. Amend your taxes The income tax liability for which you seek relief is attributable to your spouse (or former spouse) with whom you filed the joint return. Amend your taxes For exceptions to this condition, see item (8) under Conditions for Getting Equitable Relief , earlier. Amend your taxes You timely file Form 8857 as explained earlier in Exception for equitable relief under How To Request Relief. Amend your taxes Note. Amend your taxes Unlike innocent spouse relief or separation of liability relief, if you qualify for equitable relief, you can also get relief from an underpaid tax. Amend your taxes (An underpaid tax is tax that is properly shown on the return, but has not been paid. Amend your taxes ) Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Amend your taxes Generally, community property laws require you to allocate community income and expenses equally between both spouses. Amend your taxes 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. Amend your taxes      File Form 8857, Request for Innocent Spouse Relief, to ask the IRS for relief. Amend your taxes You must file an additional Form 8857 if you are requesting relief for more than three years. Amend your taxes If you are requesting innocent spouse relief or separation of liability relief, file Form 8857 no later than two years after the date on which the IRS first began collection activities against you after July 22, 1998. Amend your taxes If you are requesting equitable relief, see Exception for equitable relief. Amend your taxes under How To Request Relief, earlier, for when to file Form 8857. Amend your taxes 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. Amend your taxes Use the address or fax number shown in the Instructions for Form 8857. Amend your taxes File Form 8857 at the address or send it to the fax number shown in the Instructions for Form 8857. Amend your taxes Do not file it with the employee assigned to examine your return. Amend your taxes Generally, the IRS has 10 years to collect an amount you owe. Amend your taxes This is the collection statute of limitations. Amend your taxes By law, the IRS is not allowed to collect from you after the 10-year period ends. Amend your taxes If you request relief for any tax year, the IRS cannot collect from you for that year while your request is pending. Amend your taxes But interest and penalties continue to accrue. Amend your taxes Your request is generally considered pending from the date the IRS receives your Form 8857 until the date your request is resolved. Amend your taxes This includes the time the Tax Court is considering your request. Amend your taxes After your case is resolved, the IRS can begin or resume collecting from you. Amend your taxes The 10-year period will be increased by the amount of time your request for relief was pending plus 60 days. Amend your taxes See Publication 594 for more information. Amend your taxes Injured spouse relief is different from innocent spouse relief. Amend your taxes When a joint return is filed and the refund is used to pay one spouse's past-due federal tax, state income tax, state unemployment compensation debts, child support, spousal support, or federal non-tax debt, such as a student loan, the other spouse may be considered an injured spouse. Amend your taxes The injured spouse can get back his or her share of the joint overpayment using Form 8379, Injured Spouse Allocation. Amend your taxes You are considered an injured spouse if: You are not legally obligated to pay the past-due amount, and You meet any of the following conditions: You made and reported tax payments (such as federal income tax withholding or estimated tax payments). Amend your taxes You had earned income (such as wages, salaries, or self-employment income) and claimed the earned income credit or the additional child tax credit. Amend your taxes You claimed a refundable tax credit, such as the health coverage tax credit or the refundable credit for prior year minimum tax. Amend your taxes Note. Amend your taxes If your residence was in a community property state at any time during the year, you may file Form 8379 even if only item (1) above applies. Amend your taxes . Amend your taxes How can I get relief from joint and several liability? There are three types of relief for filers of joint returns: “innocent spouse relief,” “separation of liability relief,” and “equitable relief. Amend your taxes ” Each type has different requirements. Amend your taxes They are explained separately below. Amend your taxes To qualify for innocent spouse relief, you must meet all of the following conditions. Amend your taxes You must have filed a joint return which has an understated tax. Amend your taxes The understated tax must be due to erroneous items of your spouse (or former spouse). Amend your taxes 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 understated tax. Amend your taxes Taking into account all of the facts and circumstances, it would be unfair to hold you liable for the understated tax. Amend your taxes You must request relief within 2 years after the date on which the IRS first began collection activity against you after July 22, 1998. Amend your taxes 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. Amend your taxes You have an understated tax if the IRS determined that your total tax should be more than the amount actually shown on your return. Amend your taxes For example, you reported total tax on your 2008 return of $2,500. Amend your taxes IRS determined in an audit of your 2008 return that the total tax should be $3,000. Amend your taxes You have a $500 understated tax. Amend your taxes No. Amend your taxes There are many situations in which you may owe tax that is related to your spouse (or former spouse), but not be eligible for innocent spouse relief. Amend your taxes 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. Amend your taxes You are not eligible for innocent spouse relief because you have knowledge of the understated tax. Amend your taxes Under this type of relief, you allocate (separate) the understated tax (plus interest and penalties) on your joint return between you and your spouse (or former spouse). Amend your taxes The understated tax allocated to you is generally the amount you are responsible for. Amend your taxes To qualify for 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. Amend your taxes 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. Amend your taxes (Under this rule, you are no longer married if you are widowed. Amend your taxes ) 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. Amend your taxes In addition to the above requirements, you must file a Form 8857 within 2 years after the date on which the IRS first began collection activity against you after July 22, 1998. Amend your taxes Even if you meet the requirements listed earlier, a request for separation of liability relief will not be granted in the following situations. Amend your taxes The IRS proves that you and your spouse (or former spouse) transferred assets to one another as part of a fraudulent scheme. Amend your taxes 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 (or former spouse). Amend your taxes Your spouse (or former spouse) transferred property to you to avoid tax or the payment of tax. Amend your taxes Equitable relief is only available if you meet all of the following conditions. Amend your taxes You do not qualify for innocent spouse relief, separation of liability relief, or relief from liability arising from community property law. Amend your taxes You have an understated tax or underpaid tax. Amend your taxes See Note later. Amend your taxes You did not pay the tax. Amend your taxes However, see Refunds , earlier, for exceptions. Amend your taxes The IRS determines that it is unfair to hold you liable for the understated or underpaid tax taking into account all the facts and circumstances. Amend your taxes You and your spouse (or former spouse) did not transfer assets to one another as a part of a fraudulent scheme. Amend your taxes Your spouse (or former spouse) did not transfer property to you for the main purpose of avoiding tax or the payment of tax. Amend your taxes You did not file or fail to file your return with the intent to commit fraud. Amend your taxes The income tax liability for which you seek relief is attributable to your spouse (or former spouse) with whom you filed the joint return. Amend your taxes For exceptions to this condition, see item (8) under Conditions for Getting Equitable Relief , earlier. Amend your taxes You timely file Form 8857 as explained earlier in Exception for equitable relief under How To Request Relief. Amend your taxes Note. Amend your taxes Unlike innocent spouse relief or separation of liability relief, if you qualify for equitable relief, you can also get relief from an underpaid tax. Amend your taxes (An underpaid tax is tax that is properly shown on the return, but has not been paid. Amend your taxes ) Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Amend your taxes Generally, community property laws require you to allocate community income and expenses equally between both spouses. Amend your taxes 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. Amend your taxes      File Form 8857, Request for Innocent Spouse Relief, to ask the IRS for relief. Amend your taxes You must file an additional Form 8857 if you are requesting relief for more than three years. Amend your taxes If you are requesting innocent spouse relief or separation of liability relief, file Form 8857 no later than two years after the date on which the IRS first began collection activities against you after July 22, 1998. Amend your taxes If you are requesting equitable relief, see Exception for equitable relief. Amend your taxes under How To Request Relief, earlier, for when to file Form 8857. Amend your taxes 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. Amend your taxes Use the address or fax number shown in the Instructions for Form 8857. Amend your taxes File Form 8857 at the address or send it to the fax number shown in the Instructions for Form 8857. Amend your taxes Do not file it with the employee assigned to examine your return. Amend your taxes Generally, the IRS has 10 years to collect an amount you owe. Amend your taxes This is the collection statute of limitations. Amend your taxes By law, the IRS is not allowed to collect from you after the 10-year period ends. Amend your taxes If you request relief for any tax year, the IRS cannot collect from you for that year while your request is pending. Amend your taxes But interest and penalties continue to accrue. Amend your taxes Your request is generally considered pending from the date the IRS receives your Form 8857 until the date your request is resolved. Amend your taxes This includes the time the Tax Court is considering your request. Amend your taxes After your case is resolved, the IRS can begin or resume collecting from you. Amend your taxes The 10-year period will be increased by the amount of time your request for relief was pending plus 60 days. Amend your taxes See Publication 594 for more information. Amend your taxes Injured spouse relief is different from innocent spouse relief. Amend your taxes When a joint return is filed and the refund is used to pay one spouse's past-due federal tax, state income tax, state unemployment compensation debts, child support, spousal support, or federal non-tax debt, such as a student loan, the other spouse may be considered an injured spouse. Amend your taxes The injured spouse can get back his or her share of the joint overpayment using Form 8379, Injured Spouse Allocation. Amend your taxes You are considered an injured spouse if: You are not legally obligated to pay the past-due amount, and You meet any of the following conditions: You made and reported tax payments (such as federal income tax withholding or estimated tax payments). Amend your taxes You had earned income (such as wages, salaries, or self-employment income) and claimed the earned income credit or the additional child tax credit. Amend your taxes You claimed a refundable tax credit, such as the health coverage tax credit or the refundable credit for prior year minimum tax. Amend your taxes Note. Amend your taxes If your residence was in a community property state at any time during the year, you may file Form 8379 even if only item (1) above applies. Amend your taxes . Amend your taxes What are the rules for innocent spouse relief? To qualify for innocent spouse relief, you must meet all of the following conditions. Amend your taxes You must have filed a joint return which has an understated tax. Amend your taxes The understated tax must be due to erroneous items of your spouse (or former spouse). Amend your taxes 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 understated tax. Amend your taxes Taking into account all of the facts and circumstances, it would be unfair to hold you liable for the understated tax. Amend your taxes You must request relief within 2 years after the date on which the IRS first began collection activity against you after July 22, 1998. Amend your taxes 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. Amend your taxes You have an understated tax if the IRS determined that your total tax should be more than the amount actually shown on your return. Amend your taxes For example, you reported total tax on your 2008 return of $2,500. Amend your taxes IRS determined in an audit of your 2008 return that the total tax should be $3,000. Amend your taxes You have a $500 understated tax. Amend your taxes No. Amend your taxes There are many situations in which you may owe tax that is related to your spouse (or former spouse), but not be eligible for innocent spouse relief. Amend your taxes 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. Amend your taxes You are not eligible for innocent spouse relief because you have knowledge of the understated tax. Amend your taxes Under this type of relief, you allocate (separate) the understated tax (plus interest and penalties) on your joint return between you and your spouse (or former spouse). Amend your taxes The understated tax allocated to you is generally the amount you are responsible for. Amend your taxes To qualify for 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. Amend your taxes 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. Amend your taxes (Under this rule, you are no longer married if you are widowed. Amend your taxes ) 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. Amend your taxes In addition to the above requirements, you must file a Form 8857 within 2 years after the date on which the IRS first began collection activity against you after July 22, 1998. Amend your taxes Even if you meet the requirements listed earlier, a request for separation of liability relief will not be granted in the following situations. Amend your taxes The IRS proves that you and your spouse (or former spouse) transferred assets to one another as part of a fraudulent scheme. Amend your taxes 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 (or former spouse). Amend your taxes Your spouse (or former spouse) transferred property to you to avoid tax or the payment of tax. Amend your taxes Equitable relief is only available if you meet all of the following conditions. Amend your taxes You do not qualify for innocent spouse relief, separation of liability relief, or relief from liability arising from community property law. Amend your taxes You have an understated tax or underpaid tax. Amend your taxes See Note later. Amend your taxes You did not pay the tax. Amend your taxes However, see Refunds , earlier, for exceptions. Amend your taxes The IRS determines that it is unfair to hold you liable for the understated or underpaid tax taking into account all the facts and circumstances. Amend your taxes You and your spouse (or former spouse) did not transfer assets to one another as a part of a fraudulent scheme. Amend your taxes Your spouse (or former spouse) did not transfer property to you for the main purpose of avoiding tax or the payment of tax. Amend your taxes You did not file or fail to file your return with the intent to commit fraud. Amend your taxes The income tax liability for which you seek relief is attributable to your spouse (or former spouse) with whom you filed the joint return. Amend your taxes For exceptions to this condition, see item (8) under Conditions for Getting Equitable Relief , earlier. Amend your taxes You timely file Form 8857 as explained earlier in Exception for equitable relief under How To Request Relief. Amend your taxes Note. Amend your taxes Unlike innocent spouse relief or separation of liability relief, if you qualify for equitable relief, you can also get relief from an underpaid tax. Amend your taxes (An underpaid tax is tax that is properly shown on the return, but has not been paid. Amend your taxes ) Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Amend your taxes Generally, community property laws require you to allocate community income and expenses equally between both spouses. Amend your taxes 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. Amend your taxes      File Form 8857, Request for Innocent Spouse Relief, to ask the IRS for relief. Amend your taxes You must file an additional Form 8857 if you are requesting relief for more than three years. Amend your taxes If you are requesting innocent spouse relief or separation of liability relief, file Form 8857 no later than two years after the date on which the IRS first began collection activities against you after July 22, 1998. Amend your taxes If you are requesting equitable relief, see Exception for equitable relief. Amend your taxes under How To Request Relief, earlier, for when to file Form 8857. Amend your taxes 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. Amend your taxes Use the address or fax number shown in the Instructions for Form 8857. Amend your taxes File Form 8857 at the address or send it to the fax number shown in the Instructions for Form 8857. Amend your taxes Do not file it with the employee assigned to examine your return. Amend your taxes Generally, the IRS has 10 years to collect an amount you owe. Amend your taxes This is the collection statute of limitations. Amend your taxes By law, the IRS is not allowed to collect from you after the 10-year period ends. Amend your taxes If you request relief for any tax year, the IRS cannot collect from you for that year while your request is pending. Amend your taxes But interest and penalties continue to accrue. Amend your taxes Your request is generally considered pending from the date the IRS receives your Form 8857 until the date your request is resolved. Amend your taxes This includes the time the Tax Court is considering your request. Amend your taxes After your case is resolved, the IRS can begin or resume collecting from you. Amend your taxes The 10-year period will be increased by the amount of time your request for relief was pending plus 60 days. Amend your taxes See Publication 594 for more information. Amend your taxes Injured spouse relief is different from innocent spouse relief. Amend your taxes When a joint return is filed and the refund is used to pay one spouse's past-due federal tax, state income tax, state unemployment compensation debts, child support, spousal support, or federal non-tax debt, such as a student loan, the other spouse may be considered an injured spouse. Amend your taxes The injured spouse can get back his or her share of the joint overpayment using Form 8379, Injured Spouse Allocation. Amend your taxes You are considered an injured spouse if: You are not legally obligated to pay the past-due amount, and You meet any of the following conditions: You made and reported tax payments (such as federal income tax withholding or estimated tax payments). Amend your taxes You had earned income (such as wages, salaries, or self-employment income) and claimed the earned income credit or the additional child tax credit. Amend your taxes You claimed a refundable tax credit, such as the health coverage tax credit or the refundable credit for prior year minimum tax. Amend your taxes Note. Amend your taxes If your residence was in a community property state at any time during the year, you may file Form 8379 even if only item (1) above applies. Amend your taxes . Amend your taxes 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. Amend your taxes You have an understated tax if the IRS determined that your total tax should be more than the amount actually shown on your return. Amend your taxes For example, you reported total tax on your 2008 return of $2,500. Amend your taxes IRS determined in an audit of your 2008 return that the total tax should be $3,000. Amend your taxes You have a $500 understated tax. Amend your taxes No. Amend your taxes There are many situations in which you may owe tax that is related to your spouse (or former spouse), but not be eligible for innocent spouse relief. Amend your taxes 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. Amend your taxes You are not eligible for innocent spouse relief because you have knowledge of the understated tax. Amend your taxes Under this type of relief, you allocate (separate) the understated tax (plus interest and penalties) on your joint return between you and your spouse (or former spouse). Amend your taxes The understated tax allocated to you is generally the amount you are responsible for. Amend your taxes To qualify for 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. Amend your taxes 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. Amend your taxes (Under this rule, you are no longer married if you are widowed. Amend your taxes ) 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. Amend your taxes In addition to the above requirements, you must file a Form 8857 within 2 years after the date on which the IRS first began collection activity against you after July 22, 1998. Amend your taxes Even if you meet the requirements listed earlier, a request for separation of liability relief will not be granted in the following situations. Amend your taxes The IRS proves that you and your spouse (or former spouse) transferred assets to one another as part of a fraudulent scheme. Amend your taxes 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 (or former spouse). Amend your taxes Your spouse (or former spouse) transferred property to you to avoid tax or the payment of tax. Amend your taxes Equitable relief is only available if you meet all of the following conditions. Amend your taxes You do not qualify for innocent spouse relief, separation of liability relief, or relief from liability arising from community property law. Amend your taxes You have an understated tax or underpaid tax. Amend your taxes See Note later. Amend your taxes You did not pay the tax. Amend your taxes However, see Refunds , earlier, for exceptions. Amend your taxes The IRS determines that it is unfair to hold you liable for the understated or underpaid tax taking into account all the facts and circumstances. Amend your taxes You and your spouse (or former spouse) did not transfer assets to one another as a part of a fraudulent scheme. Amend your taxes Your spouse (or former spouse) did not transfer property to you for the main purpose of avoiding tax or the payment of tax. Amend your taxes You did not file or fail to file your return with the intent to commit fraud. Amend your taxes The income tax liability for which you seek relief is attributable to your spouse (or former spouse) with whom you filed the joint return. Amend your taxes For exceptions to this condition, see item (8) under Conditions for Getting Equitable Relief , earlier. Amend your taxes You timely file Form 8857 as explained earlier in Exception for equitable relief under How To Request Relief. Amend your taxes Note. Amend your taxes Unlike innocent spouse relief or separation of liability relief, if you qualify for equitable relief, you can also get relief from an underpaid tax. Amend your taxes (An underpaid tax is tax that is properly shown on the return, but has not been paid. Amend your taxes ) Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Amend your taxes Generally, community property laws require you to allocate community income and expenses equally between both spouses. Amend your taxes 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. Amend your taxes      File Form 8857, Request for Innocent Spouse Relief, to ask the IRS for relief. Amend your taxes You must file an additional Form 8857 if you are requesting relief for more than three years. Amend your taxes If you are requesting innocent spouse relief or separation of liability relief, file Form 8857 no later than two years after the date on which the IRS first began collection activities against you after July 22, 1998. Amend your taxes If you are requesting equitable relief, see Exception for equitable relief. Amend your taxes under How To Request Relief, earlier, for when to file Form 8857. Amend your taxes 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. Amend your taxes Use the address or fax number shown in the Instructions for Form 8857. Amend your taxes File Form 8857 at the address or send it to the fax number shown in the Instructions for Form 8857. Amend your taxes Do not file it with the employee assigned to examine your return. Amend your taxes Generally, the IRS has 10 years to collect an amount you owe. Amend your taxes This is the collection statute of limitations. Amend your taxes By law, the IRS is not allowed to collect from you after the 10-year period ends. Amend your taxes If you request relief for any tax year, the IRS cannot collect from you for that year while your request is pending. Amend your taxes But interest and penalties continue to accrue. Amend your taxes Your request is generally considered pending from the date the IRS receives your Form 8857 until the date your request is resolved. Amend your taxes This includes the time the Tax Court is considering your request. Amend your taxes After your case is resolved, the IRS can begin or resume collecting from you. Amend your taxes The 10-year period will be increased by the amount of time your request for relief was pending plus 60 days. Amend your taxes See Publication 594 for more information. Amend your taxes Injured spouse relief is different from innocent spouse relief. Amend your taxes When a joint return is filed and the refund is used to pay one spouse's past-due federal tax, state income tax, state unemployment compensation debts, child support, spousal support, or federal non-tax debt, such as a student loan, the other spouse may be considered an injured spouse. Amend your taxes The injured spouse can get back his or her share of the joint overpayment using Form 8379, Injured Spouse Allocation. Amend your taxes You are considered an injured spouse if: You are not legally obligated to pay the past-due amount, and You meet any of the following conditions: You made and reported tax payments (such as federal income tax withholding or estimated tax payments). Amend your taxes You had earned income (such as wages, salaries, or self-employment income) and claimed the earned income credit or the additional child tax credit. Amend your taxes You claimed a refundable tax credit, such as the health coverage tax credit or the refundable credit for prior year minimum tax. Amend your taxes Note. Amend your taxes If your residence was in a community property state at any time during the year, you may file Form 8379 even if only item (1) above applies. Amend your taxes . Amend your taxes What is an “understated tax”? You have an understated tax if the IRS determined that your total tax should be more than the amount actually shown on your return. Amend your taxes For example, you reported total tax on your 2008 return of $2,500. Amend your taxes IRS determined in an audit of your 2008 return that the total tax should be $3,000. Amend your taxes You have a $500 understated tax. Amend your taxes No. Amend your taxes There are many situations in which you may owe tax that is related to your spouse (or former spouse), but not be eligible for innocent spouse relief. Amend your taxes 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. Amend your taxes You are not eligible for innocent spouse relief because you have knowledge of the understated tax. Amend your taxes Under this type of relief, you allocate (separate) the understated tax (plus interest and penalties) on your joint return between you and your spouse (or former spouse). Amend your taxes The understated tax allocated to you is generally the amount you are responsible for. Amend your taxes To qualify for 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. Amend your taxes 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. Amend your taxes (Under this rule, you are no longer married if you are widowed. Amend your taxes ) 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. Amend your taxes In addition to the above requirements, you must file a Form 8857 within 2 years after the date on which the IRS first began collection activity against you after July 22, 1998. Amend your taxes Even if you meet the requirements listed earlier, a request for separation of liability relief will not be granted in the following situations. Amend your taxes The IRS proves that you and your spouse (or former spouse) transferred assets to one another as part of a fraudulent scheme. Amend your taxes 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 (or former spouse). Amend your taxes Your spouse (or former spouse) transferred property to you to avoid tax or the payment of tax. Amend your taxes Equitable relief is only available if you meet all of the following conditions. Amend your taxes You do not qualify for innocent spouse relief, separation of liability relief, or relief from liability arising from community property law. Amend your taxes You have an understated tax or underpaid tax. Amend your taxes See Note later. Amend your taxes You did not pay the tax. Amend your taxes However, see Refunds , earlier, for exceptions. Amend your taxes The IRS determines that it is unfair to hold you liable for the understated or underpaid tax taking into account all the facts and circumstances. Amend your taxes You and your spouse (or former spouse) did not transfer assets to one another as a part of a fraudulent scheme. Amend your taxes Your spouse (or former spouse) did not transfer property to you for the main purpose of avoiding tax or the payment of tax. Amend your taxes You did not file or fail to file your return with the intent to commit fraud. Amend your taxes The income tax liability for which you seek relief is attributable to your spouse (or former spouse) with whom you filed the joint return. Amend your taxes For exceptions to this condition, see item (8) under Conditions for Getting Equitable Relief , earlier. Amend your taxes You timely file Form 8857 as explained earlier in Exception for equitable relief under How To Request Relief. Amend your taxes Note. Amend your taxes Unlike innocent spouse relief or separation of liability relief, if you qualify for equitable relief, you can also get relief from an underpaid tax. Amend your taxes (An underpaid tax is tax that is properly shown on the return, but has not been paid. Amend your taxes ) Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Amend your taxes Generally, community property laws require you to allocate community income and expenses equally between both spouses. Amend your taxes 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. Amend your taxes      File Form 8857, Request for Innocent Spouse Relief, to ask the IRS for relief. Amend your taxes You must file an additional Form 8857 if you are requesting relief for more than three years. Amend your taxes If you are requesting innocent spouse relief or separation of liability relief, file Form 8857 no later than two years after the date on which the IRS first began collection activities against you after July 22, 1998. Amend your taxes If you are requesting equitable relief, see Exception for equitable relief. Amend your taxes under How To Request Relief, earlier, for when to file Form 8857. Amend your taxes 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. Amend your taxes Use the address or fax number shown in the Instructions for Form 8857. Amend your taxes File Form 8857 at the address or send it to the fax number shown in the Instructions for Form 8857. Amend your taxes Do not file it with the employee assigned to examine your return. Amend your taxes Generally, the IRS has 10 years to collect an amount you owe. Amend your taxes This is the collection statute of limitations. Amend your taxes By law, the IRS is not allowed to collect from you after the 10-year period ends. Amend your taxes If you request relief for any tax year, the IRS cannot collect from you for that year while your request is pending. Amend your taxes But interest and penalties continue to accrue. Amend your taxes Your request is generally considered pending from the date the IRS receives your Form 8857 until the date your request is resolved. Amend your taxes This includes the time the Tax Court is considering your request. Amend your taxes After your case is resolved, the IRS can begin or resume collecting from you. Amend your taxes The 10-year period will be increased by the amount of time your request for relief was pending plus 60 days. Amend your taxes See Publication 594 for more information. Amend your taxes Injured spouse relief is different from innocent spouse relief. Amend your taxes When a joint return is filed and the refund is used to pay one spouse's past-due federal tax, state income tax, state unemployment compensation debts, child support, spousal support, or federal non-tax debt, such as a student loan, the other spouse may be considered an injured spouse. Amend your taxes The injured spouse can get back his or her share of the joint overpayment using Form 8379, Injured Spouse Allocation. Amend your taxes You are considered an injured spouse if: You are not legally obligated to pay the past-due amount, and You meet any of the following conditions: You made and reported tax payments (such as federal income tax withholding or estimated tax payments). Amend your taxes You had earned income (such as wages, salaries, or self-employment income) and claimed the earned income credit or the additional child tax credit. Amend your taxes You claimed a refundable tax credit, such as the health coverage tax credit or the refundable credit for prior year minimum tax. Amend your taxes Note. Amend your taxes If your residence was in a community property state at any time during the year, you may file Form 8379 even if only item (1) above applies. Amend your taxes . Amend your taxes Will I qualify for innocent spouse relief in any situation where there is an understated tax? No. Amend your taxes There are many situations in which you may owe tax that is related to your spouse (or former spouse), but not be eligible for innocent spouse relief. Amend your taxes 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. Amend your taxes You are not eligible for innocent spouse relief because you have knowledge of the understated tax. Amend your taxes Under this type of relief, you allocate (separate) the understated tax (plus interest and penalties) on your joint return between you and your spouse (or former spouse). Amend your taxes The understated tax allocated to you is generally the amount you are responsible for. Amend your taxes To qualify for 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. Amend your taxes 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. Amend your taxes (Under this rule, you are no longer married if you are widowed. Amend your taxes ) 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. Amend your taxes In addition to the above requirements, you must file a Form 8857 within 2 years after the date on which the IRS first began collection activity against you after July 22, 1998. Amend your taxes Even if you meet the requirements listed earlier, a request for separation of liability relief will not be granted in the following situations. Amend your taxes The IRS proves that you and your spouse (or former spouse) transferred assets to one another as part of a fraudulent scheme. Amend your taxes 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 (or former spouse). Amend your taxes Your spouse (or former spouse) transferred property to you to avoid tax or the payment of tax. Amend your taxes Equitable relief is only available if you meet all of the following conditions. Amend your taxes You do not qualify for innocent spouse relief, separation of liability relief, or relief from liability arising from community property law. Amend your taxes You have an understated tax or underpaid tax. Amend your taxes See Note later. Amend your taxes You did not pay the tax. Amend your taxes However, see Refunds , earlier, for exceptions. Amend your taxes The IRS determines that it is unfair to hold you liable for the understated or underpaid tax taking into account all the facts and circumstances. Amend your taxes You and your spouse (or former spouse) did not transfer assets to one another as a part of a fraudulent scheme. Amend your taxes Your spouse (or former spouse) did not transfer property to you for the main purpose of avoiding tax or the payment of tax. Amend your taxes You did not file or fail to file your return with the intent to commit fraud. Amend your taxes The income tax liability for which you seek relief is attributable to your spouse (or former spouse) with whom you filed the joint return. Amend your taxes For exceptions to this condition, see item (8) under Conditions for Getting Equitable Relief , earlier. Amend your taxes You timely file Form 8857 as explained earlier in Exception for equitable relief under How To Request Relief. Amend your taxes Note. Amend your taxes Unlike innocent spouse relief or separation of liability relief, if you qualify for equitable relief, you can also get relief from an underpaid tax. Amend your taxes (An underpaid tax is tax that is properly shown on the return, but has not been paid. Amend your taxes ) Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Amend your taxes Generally, community property laws require you to allocate community income and expenses equally between both spouses. Amend your taxes 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. Amend your taxes      File Form 8857, Request for Innocent Spouse Relief, to ask the IRS for relief. Amend your taxes You must file an additional Form 8857 if you are requesting relief for more than three years. Amend your taxes If you are requesting innocent spouse relief or separation of liability relief, file Form 8857 no later than two years after the date on which the IRS first began collection activities against you after July 22, 1998. Amend your taxes If you are requesting equitable relief, see Exception for equitable relief. Amend your taxes under How To Request Relief, earlier, for when to file Form 8857. Amend your taxes 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. Amend your taxes Use the address or fax number shown in the Instructions for Form 8857. Amend your taxes File Form 8857 at the address or send it to the fax number shown in the Instructions for Form 8857. Amend your taxes Do not file it with the employee assigned to examine your return. Amend your taxes Generally, the IRS has 10 years to collect an amount you owe. Amend your taxes This is the collection statute of limitations. Amend your taxes By law, the IRS is not allowed to collect from you after the 10-year period ends. Amend your taxes If you request relief for any tax year, the IRS cannot collect from you for that year while your request is pending. Amend your taxes But interest and penalties continue to accrue. Amend your taxes Your request is generally considered pending from the date the IRS receives your Form 8857 until the date your request is resolved. Amend your taxes This includes the time the Tax Court is considering your request. Amend your taxes After your case is resolved, the IRS can begin or resume collecting from you. Amend your taxes The 10-year period will be increased by the amount of time your request for relief was pending plus 60 days. Amend your taxes See Publication 594 for more information. Amend your taxes Injured spouse relief is different from innocent spouse relief. Amend your taxes When a joint return is filed and the refund is used to pay one spouse's past-due federal tax, state income tax, state unemployment compensation debts, child support, spousal support, or federal non-tax debt, such as a student loan, the other spouse may be considered an injured spouse. Amend your taxes The injured spouse can get back his or her share of the joint overpayment using Form 8379, Injured Spouse Allocation. Amend your taxes You are considered an injured spouse if: You are not legally obligated to pay the past-due amount, and You meet any of the following conditions: You made and reported tax payments (such as federal income tax withholding or estimated tax payments). Amend your taxes You had earned income (such as wages, salaries, or self-employment income) and claimed the earned income credit or the additional child tax credit. Amend your taxes You claimed a refundable tax credit, such as the health coverage tax credit or the refundable credit for prior year minimum tax. Amend your taxes Note. Amend your taxes If your residence was in a community property state at any time during the year, you may file Form 8379 even if only item (1) above applies. Amend your taxes . Amend your taxes What are the rules for separation of liability relief? Under this type of relief, you allocate (separate) the understated tax (plus interest and penalties) on your joint return between you and your spouse (or former spouse). Amend your taxes The understated tax allocated to you is generally the amount you are responsible for. Amend your taxes To qualify for 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. Amend your taxes 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. Amend your taxes (Under this rule, you are no longer married if you are widowed. Amend your taxes ) 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. Amend your taxes In addition to the above requirements, you must file a Form 8857 within 2 years after the date on which the IRS first began collection activity against you after July 22, 1998. Amend your taxes Even if you meet the requirements listed earlier, a request for separation of liability relief will not be granted in the following situations. Amend your taxes The IRS proves that you and your spouse (or former spouse) transferred assets to one another as part of a fraudulent scheme. Amend your taxes 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 (or former spouse). Amend your taxes Your spouse (or former spouse) transferred property to you to avoid tax or the payment of tax. Amend your taxes Equitable relief is only available if you meet all of the following conditions. Amend your taxes You do not qualify for innocent spouse relief, separation of liability relief, or relief from liability arising from community property law. Amend your taxes You have an understated tax or underpaid tax. Amend your taxes See Note later. Amend your taxes You did not pay the tax. Amend your taxes However, see Refunds , earlier, for exceptions. Amend your taxes The IRS determines that it is unfair to hold you liable for the understated or underpaid tax taking into account all the facts and circumstances. Amend your taxes You and your spouse (or former spouse) did not transfer assets to one another as a part of a fraudulent scheme. Amend your taxes Your spouse (or former spouse) did not transfer property to you for the main purpose of avoiding tax or the payment of tax. Amend your taxes You did not file or fail to file your return with the intent to commit fraud. Amend your taxes The income tax liability for which you seek relief is attributable to your spouse (or former spouse) with whom you filed the joint return. Amend your taxes For exceptions to this condition, see item (8) under Conditions for Getting Equitable Relief , earlier. Amend your taxes You timely file Form 8857 as explained earlier in Exception for equitable relief under How To Request Relief. Amend your taxes Note. Amend your taxes Unlike innocent spouse relief or separation of liability relief, if you qualify for equitable relief, you can also get relief from an underpaid tax. Amend your taxes (An underpaid tax is tax that is properly shown on the return, but has not been paid. Amend your taxes ) Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Amend your taxes Generally, community property laws require you to allocate community income and expenses equally between both spouses. Amend your taxes 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. Amend your taxes      File Form 8857, Request for Innocent Spouse Relief, to ask the IRS for relief. Amend your taxes You must file an additional Form 8857 if you are requesting relief for more than three years. Amend your taxes If you are requesting innocent spouse relief or separation of liability relief, file Form 8857 no later than two years after the date on which the IRS first began collection activities against you after July 22, 1998. Amend your taxes If you are requesting equitable relief, see Exception for equitable relief. Amend your taxes under How To Request Relief, earlier, for when to file Form 8857. Amend your taxes 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. Amend your taxes Use the address or fax number shown in the Instructions for Form 8857. Amend your taxes File Form 8857 at the address or send it to the fax number shown in the Instructions for Form 8857. Amend your taxes Do not file it with the employee assigned to examine your return. Amend your taxes Generally, the IRS has 10 years to collect an amount you owe. Amend your taxes This is the collection statute of limitations. Amend your taxes By law, the IRS is not allowed to collect from you after the 10-year period ends. Amend your taxes If you request relief for any tax year, the IRS cannot collect from you for that year while your request is pending. Amend your taxes But interest and penalties continue to accrue. Amend your taxes Your request is generally considered pending from the date the IRS receives your Form 8857 until the date your request is resolved. Amend your taxes This includes the time the Tax Court is considering your request. Amend your taxes After your case is resolved, the IRS can begin or resume collecting from you. Amend your taxes The 10-year period will be increased by the amount of time your request for relief was pending plus 60 days. Amend your taxes See Publication 594 for more information. Amend your taxes Injured spouse relief is different from innocent spouse relief. Amend your taxes When a joint return is filed and the refund is used to pay one spouse's past-due federal tax, state income tax, state unemployment compensation debts, child support, spousal support, or federal non-tax debt, such as a student loan, the other spouse may be considered an injured spouse. Amend your taxes The injured spouse can get back his or her share of the joint overpayment using Form 8379, Injured Spouse Allocation. Amend your taxes You are considered an injured spouse if: You are not legally obligated to pay the past-due amount, and You meet any of the following conditions: You made and reported tax payments (such as federal income tax withholding or estimated tax payments). Amend your taxes You had earned income (such as wages, salaries, or self-employment income) and claimed the earned income credit or the additional child tax credit. Amend your taxes You claimed a refundable tax credit, such as the health coverage tax credit or the refundable credit for prior year minimum tax. Amend your taxes Note. Amend your taxes If your residence was in a community property state at any time during the year, you may file Form 8379 even if only item (1) above applies. Amend your taxes . Amend your taxes Why would a request for separation of liability relief be denied? Even if you meet the requirements listed earlier, a request for separation of liability relief will not be granted in the following situations. Amend your taxes The IRS proves that you and your spouse (or former spouse) transferred assets to one another as part of a fraudulent scheme. Amend your taxes 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 (or former spouse). Amend your taxes Your spouse (or former spouse) transferred property to you to avoid tax or the payment of tax. Amend your taxes Equitable relief is only available if you meet all of the following conditions. Amend your taxes You do not qualify for innocent spouse relief, separation of liability relief, or relief from liability arising from community property law. Amend your taxes You have an understated tax or underpaid tax. Amend your taxes See Note later. Amend your taxes You did not pay the tax. Amend your taxes However, see Refunds , earlier, for exceptions. Amend your taxes The IRS determines that it is unfair to hold you liable for the understated or underpaid tax taking into account all the facts and circumstances. Amend your taxes You and your spouse (or former spouse) did not transfer assets to one another as a part of a fraudulent scheme. Amend your taxes Your spouse (or former spouse) did not transfer property to you for the main purpose of avoiding tax or the payment of tax. Amend your taxes You did not file or fail to file your return with the intent to commit fraud. Amend your taxes The income tax liability for which you seek relief is attributable to your spouse (or former spouse) with whom you filed the joint return. Amend your taxes For exceptions to this condition, see item (8) under Conditions for Getting Equitable Relief , earlier. Amend your taxes You timely file Form 8857 as explained earlier in Exception for equitable relief under How To Request Relief. Amend your taxes Note. Amend your taxes Unlike innocent spouse relief or separation of liability relief, if you qualify for equitable relief, you can also get relief from an underpaid tax. Amend your taxes (An underpaid tax is tax that is properly shown on the return, but has not been paid. Amend your taxes ) Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Amend your taxes Generally, community property laws require you to allocate community income and expenses equally between both spouses. Amend your taxes 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. Amend your taxes      File Form 8857, Request for Innocent Spouse Relief, to ask the IRS for relief. Amend your taxes You must file an additional Form 8857 if you are requesting relief for more than three years. Amend your taxes If you are requesting innocent spouse relief or separation of liability relief, file Form 8857 no later than two years after the date on which the IRS first began collection activities against you after July 22, 1998. Amend your taxes If you are requesting equitable relief, see Exception for equitable relief. Amend your taxes under How To Request Relief, earlier, for when to file Form 8857. Amend your taxes 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. Amend your taxes Use the address or fax number shown in the Instructions for Form 8857. Amend your taxes File Form 8857 at the address or send it to the fax number shown in the Instructions for Form 8857. Amend your taxes Do not file it with the employee assigned to examine your return. Amend your taxes Generally, the IRS has 10 years to collect an amount you owe. Amend your taxes This is the collection statute of limitations. Amend your taxes By law, the IRS is not allowed to collect from you after the 10-year period ends. Amend your taxes If you request relief for any tax year, the IRS cannot collect from you for that year while your request is pending. Amend your taxes But interest and penalties continue to accrue. Amend your taxes Your request is generally considered pending from the date the IRS receives your Form 8857 until the date your request is resolved. Amend your taxes This includes the time the Tax Court is considering your request. Amend your taxes After your case is resolved, the IRS can begin or resume collecting from you. Amend your taxes The 10-year period will be increased by the amount of time your request for relief was pending plus 60 days. Amend your taxes See Publication 594 for more information. Amend your taxes Injured spouse relief is different from innocent spouse relief. Amend your taxes When a joint return is filed and the refund is used to pay one spouse's past-due federal tax, state income tax, state unemployment compensation debts, child support, spousal support, or federal non-tax debt, such as a student loan, the other spouse may be considered an injured spouse. Amend your taxes The injured spouse can get back his or her share of the joint overpayment using Form 8379, Injured Spouse Allocation. Amend your taxes You are considered an injured spouse if: You are not legally obligated to pay the past-due amount, and You meet any of the following conditions: You made and reported tax payments (such as federal income tax withholding or estimated tax payments). Amend your taxes You had earned income (such as wages, salaries, or self-employment income) and claimed the earned income credit or the additional child tax credit. Amend your taxes You claimed a refundable tax credit, such as the health coverage tax credit or the refundable credit for prior year minimum tax. Amend your taxes Note. Amend your taxes If your residence was in a community property state at any time during the year, you may file Form 8379 even if only item (1) above applies. Amend your taxes . Amend your taxes What are the rules for equitable relief? Equitable relief is only available if you meet all of the following conditions. Amend your taxes You do not qualify for innocent spouse relief, separation of liability relief, or relief from liability arising from community property law. Amend your taxes You have an understated tax or underpaid tax. Amend your taxes See Note later. Amend your taxes You did not pay the tax. Amend your taxes However, see Refunds , earlier, for exceptions. Amend your taxes The IRS determines that it is unfair to hold you liable for the understated or underpaid tax taking into account all the facts and circumstances. Amend your taxes You and your spouse (or former spouse) did not transfer assets to one another as a part of a fraudulent scheme. Amend your taxes Your spouse (or former spouse) did not transfer property to you for the main purpose of avoiding tax or the payment of tax. Amend your taxes You did not file or fail to file your return with the intent to commit fraud. Amend your taxes The income tax liability for which you seek relief is attributable to your spouse (or former spouse) with whom you filed the joint return. Amend your taxes For exceptions to this condition, see item (8) under Conditions for Getting Equitable Relief , earlier. Amend your taxes You timely file Form 8857 as explained earlier in Exception for equitable relief under How To Request Relief. Amend your taxes Note. Amend your taxes Unlike innocent spouse relief or separation of liability relief, if you qualify for equitable relief, you can also get relief from an underpaid tax. Amend your taxes (An underpaid tax is tax that is properly shown on the return, but has not been paid. Amend your taxes ) Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Amend your taxes Generally, community property laws require you to allocate community income and expenses equally between both spouses. Amend your taxes 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. Amend your taxes      File Form 8857, Request for Innocent Spouse Relief, to ask the IRS for relief. Amend your taxes You must file an additional Form 8857 if you are requesting relief for more than three years. Amend your taxes If you are requesting innocent spouse relief or separation of liability relief, file Form 8857 no later than two years after the date on which the IRS first began collection activities against you after July 22, 1998. Amend your taxes If you are requesting equitable relief, see Exception for equitable relief. Amend your taxes under How To Request Relief, earlier, for when to file Form 8857. Amend your taxes 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. Amend your taxes Use the address or fax number shown in the Instructions for Form 8857. Amend your taxes File Form 8857 at the address or send it to the fax number shown in the Instructions for Form 8857. Amend your taxes Do not file it with the employee assigned to examine your return. Amend your taxes Generally, the IRS has 10 years to collect an amount you owe. Amend your taxes This is the collection statute of limitations. Amend your taxes By law, the IRS is not allowed to collect from you after the 10-year period ends. Amend your taxes If you request relief for any tax year, the IRS cannot collect from you for that year while your request is pending. Amend your taxes But interest and penalties continue to accrue. Amend your taxes Your request is generally considered pending from the date the IRS receives your Form 8857 until the date your request is resolved. Amend your taxes This includes the time the Tax Court is considering your request. Amend your taxes After your case is resolved, the IRS can begin or resume collecting from you. Amend your taxes The 10-year period will be increased by the amount of time your request for relief was pending plus 60 days. Amend your taxes See Publication 594 for more information. Amend your taxes Injured spouse relief is different from innocent spouse relief. Amend your taxes When a joint return is filed and the refund is used to pay one spouse's past-due federal tax, state income tax, state unemployment compensation debts, child support, spousal support, or federal non-tax debt, such as a student loan, the other spouse may be considered an injured spouse. Amend your taxes The injured spouse can get back his or her share of the joint overpayment using Form 8379, Injured Spouse Allocation. Amend your taxes You are considered an injured spouse if: You are not legally obligated to pay the past-due amount, and You meet any of the following conditions: You made and reported tax payments (such as federal income tax withholding or estimated tax payments). Amend your taxes You had earned income (such as wages, salaries, or self-employment income) and claimed the earned income credit or the additional child tax credit. Amend your taxes You claimed a refundable tax credit, such as the health coverage tax credit or the refundable credit for prior year minimum tax. Amend your taxes Note. Amend your taxes If your residence was in a community property state at any time during the year, you may file Form 8379 even if only item (1) above applies. Amend your taxes . Amend your taxes 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. Amend your taxes Generally, community property laws require you to allocate community income and expenses equally between both spouses. Amend your taxes 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. Amend your taxes      File Form 8857, Request for Innocent Spouse Relief, to ask the IRS for relief. Amend your taxes You must file an additional Form 8857 if you are requesting relief for more than three years. Amend your taxes If you are requesting innocent spouse relief or separation of liability relief, file Form 8857 no later than two years after the date on which the IRS first began collection activities against you after July 22, 1998. Amend your taxes If you are requesting equitable relief, see Exception for equitable relief. Amend your taxes under How To Request Relief, earlier, for when to file Form 8857. Amend your taxes 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. Amend your taxes Use the address or fax number shown in the Instructions for Form 8857. 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Tax Law Changes Related to National Disaster Relief

FS-2009-8, January 2009

(Updated June 21, 2010 — For information regarding the filing of 2009 income tax returns, refer to the last section of this document, "Reporting Losses from a Federally Declared Disaster Occurring in 2010.")

The National Disaster Relief Act of 2008, Subtitle B or Title VII of the Emergency Economic Stabilization Act of 2008, signed into law on Oct. 3, 2008, as Public Law 110-343, provides tax relief for victims of federally declared disasters occurring after
Dec. 31, 2007, and before Jan. 1, 2010.

Prior to enactment of the National Disaster Relief Act, when a major disaster struck, Congress would draft legislation providing targeted tax benefits for taxpayers affected by the disaster that were specific to that particular disaster.

The National Disaster Relief Act, which provides a broad package of tax benefits that may be used by anyone who is affected by a federally declared disaster, effectively replaces the strategy of providing targeted benefits for disaster victims in the weeks or months following the incident. Certain provisions of the National Disaster Relief Act of 2008 do not apply to the Midwestern disaster areas –– disasters affecting the Midwest that were declared from May 20, 2008 through July 31, 2008 –– because the Heartland and Hurricane Ike Disaster Relief Act, part of the same legislation that resulted in the National Disaster Relief Act, provides other tax benefits. See Publication 4492-B for detailed information on the tax benefits that apply to the Midwestern disaster areas. 

The National Disaster Relief Act provides the following tax benefits: 

  • Allows all taxpayers, not just those who itemize, to claim the casualty loss deduction regardless of the taxpayer’s adjusted gross income level;
  • Increases the amount by which all individual taxpayers must reduce their personal casualty losses from each casualty from $100 to $500 for taxable years beginning after Dec. 31, 2008. The reduction amount returns to $100 for taxable years beginning after Dec. 31, 2009;   
  • Removes the requirement that the net casualty loss deduction be allowed only if the casualty loss exceeds 10 percent of the taxpayer’s adjusted gross income;
  • Provides a five-year net operating loss (NOL) carryback for qualified natural disaster losses.
  • Waives certain mortgage revenue bond requirements for affected taxpayers and allows the bond proceeds to be used for rebuilding.

For business taxpayers, the Act also:   

  • Allows an affected business taxpayer to deduct certain qualified disaster cleanup expenses;
  • Allows an affected business taxpayer to deduct 50 percent of the cost of qualifying property in addition to the regular depreciation allowance that is normally available; and
  • Increases the limits that an affected business taxpayer can expense for qualifying section 179 property.

Major portions of the National Disaster Relief Act are highlighted below.

See Publication 547, Casualties, Disasters, and Thefts, for information necessary in preparing 2008 tax returns. 

Section 706: Losses Attributable to Federally Declared Disasters

Section 706 of the National Disaster Relief Act provides relief to individual taxpayers whose personal-use property was damaged or destroyed by a casualty in a federally declared disaster area. 

Under prior law, individuals who suffered casualty losses as a result of a Presidentially-declared disaster –– the term was redefined as “federally declared disaster” in the legislation –– were required to reduce the loss from each casualty event by $100 and reduce the total of their casualty losses for the tax year by 10 percent of their adjusted gross income. In addition, these individuals were required to claim their casualty losses as an itemized deduction. 

The new law removes the 10 percent of adjusted gross income limitation for net disaster losses and allows individuals to claim the net disaster losses even if they do not itemize their deductions. 

To qualify, a loss must be attributable to a federally declared disaster and occur in an area determined by the President to warrant federal assistance. A federally declared disaster is any disaster subsequently determined by the President to warrant assistance by the federal government under the Stafford Act. The deduction is limited to the “net disaster loss” which consists of the excess of personal casualty losses attributable to a federally declared disaster over personal casualty gains. The new law is effective for disasters declared in taxable years beginning after Dec. 31, 2007, and occurring before Jan. 1, 2010. Information on disaster declarations and the areas they encompass may be found at the Federal Emergency Management Agency (FEMA) Web site.

The new law also changes the amount by which all individual taxpayers must reduce their personal casualty losses from each casualty from $100 to $500. This change is effective for taxable years beginning after Dec. 31, 2008. The reduction amount returns to $100 for taxable years beginning after Dec. 31, 2009.   

For more information on these tax law changes, see Publication 547, Casualties, Disasters, and Thefts.

Section 712 provides that these changes to the law do not apply to the casualty losses in the Midwestern disaster areas declared during the period beginning on May 20, 2008, and ending on July 31, 2008. See Publication 4492-B for more information on the Midwestern disaster areas.

Section 707: Expensing of Qualified Disaster Expenses

Section 707 of the National Disaster Relief Act allows taxpayers to elect to currently deduct qualified disaster expenses in the tax year paid or incurred. Qualified disaster expenses consist of expenditures paid or incurred in connection with a trade or business or with business-related property that otherwise must be capitalized and that are:

  • For the abatement or control of hazardous substances that were released on account of a federally declared disaster;
  • Debris removal or demolition of structures on real property damaged or destroyed by a federally declared disaster; or
  • For the repair of business-related property damaged by a federally declared disaster. 

As previously explained, a federally declared disaster is any disaster subsequently determined by the President to warrant assistance by the federal government under the Stafford Act. This provision is effective for amounts paid or incurred after Dec. 31, 2007, in connection with disasters declared after that date and federally declared disasters occurring before Jan. 1, 2010. 

Section 712 provides that these changes to the law do not apply to the casualty losses in the Midwestern disaster areas declared during the period beginning on May 20, 2008, and ending on July 31, 2008

Section 708: Net Operating Losses Attributable to Federally Declared Disasters

In general, a net operating loss is carried back two years and carried forward 20. Section 708 of the National Disaster Relief Act allows taxpayers to carry back a qualified disaster loss five years. A qualified disaster loss is the lesser of the taxpayer’s net operating loss for the taxable year or the sum of the following:

  • The taxpayer’s losses allowable under section 165 of the Internal Revenue Code for the taxable year attributable to a federally declared disaster occurring before Jan. 1, 2010, and occurring in a disaster area; and
  • The taxpayer’s deduction for the taxable year for qualified disaster expenses allowable under section 198A(a) of the Internal Revenue Code (or the amount that would have been allowable if the taxpayer deducted qualified disaster expenses). 

A qualified disaster loss is treated a net operating loss that is separate from the taxpayer’s regular NOL. 

Section 708 also includes a provision that allows taxpayers to elect to disregard the five-year carryback rule for their qualified disaster loss. . 

Finally, Section 708 provides an exception to the general rule that a taxpayer may use an alternative minimum tax (AMT) net operating loss deduction to offset only 90 percent of the taxpayer’s alternative minimum taxable income. Section 708 provides that the 90-percent limit does not apply to the portion of the AMT net operating loss deduction attributable to a qualified disaster loss. 

These rules apply to disasters declared in taxable years beginning after Dec. 31, 2007.  

Section 712 provides that these changes to the law do not apply to the Midwestern disaster areas declared during the period beginning on May 20, 2008, and ending on July 31, 2008.

Section 709: Waiver of Certain Mortgage Revenue Bond Requirements Following Federally Declared Disasters

Section 709 of the National Disaster Relief Act adds new paragraph 12 to section 143(k) of the Internal Revenue Code, which waives certain mortgage revenue bond requirements otherwise applicable where an affected taxpayer’s principal residence is destroyed or damaged as a result of a federally declared disaster. An earlier law, the Housing Assistance Tax Act of 2008 enacted on June 30, 2008, also added a different §143(k)(12) to the Code. So currently there are two §143(k)(12)s in the Code.

New Code section 143(k)(12)(A) provides that, at the election of the taxpayer, if a person’s principal residence is destroyed –– the home is rendered unsafe for use as a result of a federally declared disaster occurring between Dec. 31, 2007 and Jan. 1, 2010, or the home is demolished or relocated because of an order issued as a result of such federally declared disaster occurring during such timeframe –– then for two years following the date of such disaster, the three-year requirement of section 143(d)(1) does not apply and the purchase price requirement is relaxed. Accordingly, such person may receive a mortgage loan financed with the proceeds of tax exempt qualified mortgage bonds regardless of whether he owned his principal residence within three years of receiving such mortgage loan, and such mortgage loan may be for the acquisition of a home which costs 110 percent of the average area purchase price. 

New Code section 143(k)(12)(B) provides that, at the election of the taxpayer, if a person’s principal residence is damaged as a result of a federally declared disaster occurring after Dec. 31, 2007, and before Jan. 1, 2010, any loan taken by such person to repair or reconstruct such residence in an amount equal to the lesser of the cost of such repair or reconstruction or $150,000 may be treated as a qualified rehabilitation loan and thus may be financed using the proceeds of tax-exempt qualified mortgage bonds. An election, once made, cannot be revoked unless permission is granted by the Secretary. 

Section 709 further provides that a taxpayer who makes a section 143(k)(12) election  may not also elect to apply the special rules for residences located in disaster areas found in Code section 143(k)(11). The special rules found in Code section 143(k)(11) allow taxpayers to use the proceeds of tax exempt qualified mortgage bonds issued between May 1, 2008, and Jan. 1, 2010, to finance mortgage loans for residences located in disaster areas for two years from the date of the applicable disaster declaration without regard to the three-year requirement by treating the residence as if it were a targeted area residence for purposes of the purchase price requirement and the income requirements. This provision, unlike § 143(k)(12), does not limit the financing only to those taxpayers whose homes were damaged by the disaster.

Section 712 provides that these changes to the law do not apply to the Midwestern disaster areas declared during the period beginning on May 20, 2008, and ending on July 31, 2008.

Section 710: Special Depreciation Allowance for Qualified Disaster Property

Section 710 of the National Disaster Relief Act provides a special 50 percent depreciation allowance for purchases of qualified disaster assistance property. It allows taxpayers to deduct 50 percent of the cost of qualified disaster assistance property in addition to the regular depreciation allowance that is normally available.

This new special “bonus depreciation” allowance applies to most types of tangible personal property and computer software acquired on or after the date on which the federally declared disaster occurs, and placed in service on or before Dec. 31 of the third year following the date on which the federally declared disaster occurs. In addition, the new bonus depreciation allowance applies to most nonresidential real property and residential rental property acquired on or after the date on which the federally declared disaster occurs, and placed in service on or before Dec. 31 of the fourth year following the date on which the federally declared disaster occurs.

To qualify for the new bonus depreciation allowance, 80 percent or more of the use of the property must be in the disaster area and in the active conduct of a trade or business by the taxpayer in that disaster area. Also, the property owner must rehabilitate property damaged, or replace property destroyed or condemned, as a result of the federally declared disaster and must be similar in nature to, and located in the same county as, the property being rehabilitated or replaced.

Section 711: Increased Expensing for Qualified Disaster Assistance Property

In general, a taxpayer may elect to expense up to a certain amount or dollar limit of section 179 property placed in service during the tax year. However, this dollar limit is reduced, but not below zero, if the cost of section 179 property placed in service during that year exceeds a certain amount, or reduced dollar limit. For 2008, the dollar limit is $250,000 and the reduced dollar limit is $800,000.

Section 711 of the National Disaster Relief Act increases the limits that businesses can expense for qualified section 179 disaster assistance property. Generally, the new law increases the dollar limit that is normally available for a particular tax year by the lesser of $100,000, or the cost of qualified section 179 disaster assistance property placed in service during that year. Also, the new law generally increases the reduced dollar limit that is normally available for a particular year by the lesser of $600,000, or the cost of qualified section 179 disaster assistance property placed in service during that year.    

Qualified section 179 disaster assistance property is section 179 property that is qualified disaster assistance property for purposes of the new bonus depreciation allowance provided under section 710 of the National Disaster Relief Act. Section 179 property is most types of tangible personal property and off-the-shelf computer software.

The new law did not change the amount that a taxpayer can elect to expense for certain sport utility vehicles and certain other vehicles placed in service during the tax year.  Accordingly, a taxpayer cannot elect to expense more than $25,000 of the cost of these types of vehicles.

Section 712: Coordination with Heartland Disaster Relief

Section 712 of the National Disaster Relief Act explains that certain provisions contained in the National Disaster Relief Act do not apply to the Midwestern Disaster Areas. For information specific to the Midwestern Disaster Areas, see Publication 4492-B.

Reporting Losses from a Federally Declared Disaster Occurring in 2010

The National Disaster Relief Act of 2008, Subtitle B or Title VII of the Emergency Economic Stabilization Act of 2008, provided enhanced tax relief for victims of federally declared disasters occurring after Dec. 31, 2007, and before Jan. 1, 2010. Those provisions are not effective for disasters occurring after Dec. 31, 2009. Legislation extending the provisions to disasters occurring before Jan. 1, 2011, has been proposed but has not yet been signed into law.

Because the enhanced casualty loss provisions are not effective for federally declared disasters occurring after Dec. 31, 2009, taxpayers affected by federally declared disasters in 2010 may take the loss into account for tax year 2009. See Page 12 of the 2009 version of Publication 547 for information on elections to deduct disaster losses in the year preceding the disaster year, including the time limits on making such elections.

This means, if you are an affected taxpayer with respect to a federally declared disaster occurring after Dec. 31, 2009, you may claim the loss on your 2009 income tax return. Claiming a loss on your 2009 return will allow you to take advantage of the National Disaster Relief Act provisions effective for tax year 2009. 

Page Last Reviewed or Updated: 20-Mar-2014

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