A request for innocent spouse relief is made by filing form 8857 within two years of the date that the IRS first attempted to collect the tax from you. You may have more time in certain situations, such as if you are seeking equitable relief.
The IRS must contact your spouse or former spouse to let them know that you have requested innocent spouse relief. This is true even in cases where spousal abuse or domestic violence occurred. The non-requesting spouse’s interests are affected by the IRS determination regarding your status as an innocent spouse because if you are successful, it will leave your spouse solely liable for some or all of the tax debt from your joint returns.
Because of the adversarial nature of innocent spouse determinations, your spouse or former spouse may try to show that you are not entitled to relief. They may claim that the item that caused the tax liability is partially attributable to you, or that you knew about an understatement of tax on the return. There are many factors that are weighed when making an innocent spouse determination, and you can expect the non-requesting spouse to point out all of the factors that weigh against a grant of innocent spouse relief.
If your request for innocent spouse relief is denied, you can appeal the decision by filing a Statement of Disagreement on form 12509. You can appeal this decision within the IRS appeals office, and once again, your spouse of former spouse will be notified of the proceedings. If you have not yet consulted with a tax attorney, you should consider doing so at this point, although we recommend that you do so BEFORE you even apply for innocent spouse relief. It is at that point when a knowledgeable tax litigation attorney can craft your request so that it more likely to be accepted.
If you disagree with the decision of the IRS Appeals Office and are unable to negotiate a favorable settlement, you have the option to appeal your case to Tax Court.
The non-requesting spouse has more limited appeal rights. They can appeal a preliminary determination letter that grants you innocent spouse relief, but they do not have the right to appeal a final determination letter to the Tax Court.