When the IRS grants innocent spouse relief to one spouse, it effectively shifts all the responsibility onto the other spouse. Instead of being able to go after either or both spouses for the amounts from a joint return, the IRS will only be able to collect from the non-requesting spouse.

This places the interests of the spouses in opposition to each other when a request for innocent spouse relief is submitted. As such, a non-requesting spouse should contact a tax attorney when they are notified that their spouse or former spouse has filed a Form 8857.

Rights of the Non-Requesting Spouse

The IRS is required to notify the non-requesting spouse when the other spouse requests innocent spouse relief. There are no exceptions to this rule, even if the requesting spouse alleges that there has been domestic violence or spousal abuse.

The non-requesting spouse will be given a chance to be a part of the innocent spouse determination. It is in their interest to have the IRS deny the claim because the other spouse will remain on the hook for the joint tax liability.

Innocent spouse requests are often fact-intensive. The non-requesting spouse may dispute many different claims made in the request, such as:

• That the requesting spouse was actually aware of erroneous items on the return.
• The requesting spouse significantly benefitted from the erroneous item or the unpaid tax liability.
• The erroneous item is not solely attributable to the non-requesting spouse.

The IRS will first issue a preliminary determination regarding the request. The non-requesting spouse can appeal this ruling before the final determination is issued.

No Tax Court Appeals for Non-Requesting Spouses

While a requesting spouse can appeal a final determination by petitioning the Tax Court, the non-requesting spouse doesn’t have such a right. If the requesting spouse files a petition, the non-requesting spouse can be involved in the Tax Court case.

In some cases, the non-requesting spouse may be able to file their own request for innocent spouse relief. If these circumstances apply, they would become a requesting spouse and receive the right to petition the Tax Court for an appeal.

Need help with an Innocent Spouse Relief request?

Get help with a request for innocent spouse relief by calling Ayar Law at 248-262-3400 or filling out our contact form.