You generally must file a request for innocent spouse relief within two years from the date that the IRS first attempts to collect the tax from you. If you do not have all of the documentation you need, you still need to file the form 8857 within the two-year period.
When Collection Activities Are Commenced
The IRS is considered to have made an attempt to collect tax from you when one of the following four actions is taken:
- The IRS offset your income tax refund against an amount you owed on a joint return for
another year and the IRS informed you about your right to file Form 8857.
- The filing of a claim by the IRS in a court proceeding in which you were a party or the filing of a claim in a proceeding that involves your property. This includes the filing of a proof of claim in a bankruptcy proceeding.
- The filing of a suit by the United States against you to collect the joint liability.
- The issuance of a notice which notifies you of your right to a collection due process (CDP) hearing.
These are the only actions that will be considered to begin the tolling of the two-year period. If you are sent another notice, such as a Notice of Deficiency or Notice of Federal Tax Lien, these do not count as attempts at collection.
Exceptions for Equitable Relief
The timing rules listed above apply to traditional innocent spouse and separation of liability relief, but there are special rules for equitable relief, depending on whether you are seeking relief from a balance due, or are seeking a credit or refund.
For a balance due, you can file a request for relief within the time period that the IRS has to collect the tax. This period is generally 10 years from the date the tax was assessed, but will be extended if the ability to collect is suspended. The IRS is generally required to suspend collection if an installment agreement or Offer in Compromise is being considered, if you are out of the country continuously for six months or more, or during the automatic stay in bankruptcy.
For a credit or refund, you will have three years from the date the original return was filed, or two years from the date the tax was paid, whichever is later. This time period may be extended if you live in a federal disaster area or if you are physically or mentally unable to manage your financial affairs.
If you are seeking relief from a balance due and a refund of amounts you paid, each deadline will apply separately to the amount of balance due and the amount of credit or refund.