May 28, 2026
The first, § 6015(b), relieves a spouse from joint liability for understatements of tax attributable to the other spouse, so long as:
Erroneous Items – Whose Fault Was It, Anyway?
Actual and Constructive Knowledge – Knew or Should have Known
The Treasury Regulations tell us it’s what a “reasonable person in similar circumstances would have known” of the understatement, with “all of the facts and circumstances” considered. Factors include the couple’s finances, the requesting spouse’s education level, business savvy, and any failure to inquire about items “that a reasonable person would question” prior to signing the return.
This element is generally where things are most prone to go off the rails, as proving the absence of something as amorphous as “constructive” knowledge can be a tall order.
An Exercise in Fairness
This vague inquiry focuses on fairness. The IRS will consider, for example, the extent to which the non-requesting spouse concealed the income-producing activities, and whether the requesting spouse received a significant benefit from those activities. Getting a normal level of support from the non-requesting spouse is fine; enjoying a lavish lifestyle upgrade probably isn’t.
Timely Requesting Relief
Relief is Mandatory
I.R.C. § 6015(c) – “Proportional” Relief for Separated Spouses
This path, too, comes with caveats and complications.
“It’s Over!”
A Lighter Lift – Actual Knowledge Only
Still yet, the IRS has the burden of proving the requesting spouse’s actual knowledge. As part of its evaluation of a § 6015(c) request, the IRS will probe all relevant facts and circumstances, including whether the requesting spouse made a deliberate effort to avoid learning about the circumstances giving rise to the deficiency.
Two-Year Cutoff
Scope of Relief
No Refunds!
I.R.C. § 6015(f) – Discretionary Relief
This last road, too, comes with its own twists and turns.
Only as a Last Resort
Heavily Fact-Dependent
While simple on its face, there is a significant rub: the IRS gets to prescribe the factors it considers when evaluating whether to exercise its discretion. It has done so in Revenue Procedure 2013-34, which provides for three tiers of review.
First, the requesting spouse must show that specified “threshold conditions” are met. That generally means a joint return, absence of relief under § 6015(b) or § 6015(c), a timely claim, and no chicanery underpinning the request.
If the threshold conditions are established, the claim will be then reviewed for “streamlined” relief if the requesting spouse is divorced (or legally separated) from the non-requesting spouse, would suffer economic hardship in the absence of relief, and lacked actual and constructive knowledge about the wrongdoing on the return.
If streamlined relief is available, the IRS will generally grant the request. If it is not, the claim is shunted into a more searching review under a factually intensive, additional multi-factor test detailed at length in Revenue Procedure.
Longer Deadline Dependent upon Whether the Tax Was Paid
For unpaid liabilities, the claim must be brought before the expiration of the statutory collections period under § 6502 (generally, 10 years following assessment).
For satisfied liabilities, the claim must be made before the expiration of the statutory refund period under § 6511 (typically the later of three years from the return or two years after the tax is paid). But why would a spouse seek relief for a liability that has been paid? Recall that refunds are generally available to spouses relieved of liability under § 6015.
Some General Points to Consider
Making a Claim
The key takeaway here is that the claim must be made to the IRS first. Courts have consistently held that they lack the power to consider innocent-spouse relief before the IRS has weighed in.
Judicial Review
It’s clear from the text of § 6015 that the disappointed spouse has a right to seek Tax Court review of that denial within 90 days. But is review also available elsewhere (e.g., District Court) and thus after 90 days have passed? That question is far from settled, particularly with respect to discretionary relief under § 6015(f). Some courts have opined that judicial review is exclusive to the Tax Court; others have entertained claims in the context of refund suits and bankruptcy proceedings.
The upshot is that the spouse’s choice of court when seeking judicial review can play a determinative (and sometimes fatal) role in the outcome. Tread lightly!
Importance of the Administrative Record
The Non-Requesting Spouse Has Rights, Too
Generally, this means procedural rights: the IRS has to send notice to the non-requesting spouse that relief from the joint liability is being sought, and the non-requesting spouse has the right to intervene in judicial proceedings concerning the joint liability.
The Punchline
A client that was just blindsided by a double-dealing spouse should know that tax relief could be on the table. And a client who recently received an IRS notice that his or her ex just filed for innocent-spouse relief needs to be aware that procedural safeguards ensuring their right to tell their side of the story are available, too.
Competent tax advice can make all the difference in this arena, and every tax advisor should have a working knowledge of this key Code provision.
Jointly Liable Unless Proven Innocent: A Sketch of Innocent-Spouse Relief under I.R.C. § 6015
Married couples have long enjoyed the right to jointly file their federal income tax returns, streamlining the reporting process and potentially decreasing their overall tax bill. By the IRS’s count, nearly 93 percent of married filers for the 2023 tax year filed jointly (with more than 54 million joint returns processed for that year). But the ubiquity of joint filing obscures a risk: joint returns mean joint liability.
Imagine a homemaker whose spouse, unbeknownst to her, embezzles money from his employer and (of course) omits it from their joint return. Those ill-gotten gains are taxable income to the villainous husband, and through the magic of joint liability, to our hapless homemaker as well -- even when she never knew about it, never saw a cent, and lacks the wherewithal to pay the bill.
After many reruns of this sad episode, Congress stepped in by adding “innocent-spouse” relief to the Internal Revenue Code, with the modern iteration found in § 6015. Though seldom making headlines in the tax world, § 6015 is a powerful tool with numerous complexities and potential pitfalls. This article explores the contours of the relief available and flags a few general points that any tax advisor assisting a client through the tax aspects of matrimonial discord should know.
I.R.C. § 6015(b) – Relief from Tax Relating to the Other Spouse’s “Erroneous Items”
Section 6015 is generally divided into three different pathways to relief, respectively covered by subsections (b), (c), and (f).
The first, § 6015(b), relieves a spouse from joint liability for understatements of tax attributable to the other spouse, so long as:
- The understatement stems from “erroneous items” of the other spouse;
- The spouse requesting relief proves he or she didn’t know, and had no reason to know, of the understatement;
- It would be “inequitable” for the IRS to hold the requesting spouse liable for the tax occasioned by the understatement; and
- Relief is requested within two years of the IRS commencing collection activity against the requesting spouse.
Though this test seems simple, a gaggle of devils lurks in the details.
Erroneous Items – Whose Fault Was It, Anyway?
Let’s start with “erroneous items.” These are omissions from the return or other forms of improper tax reporting, attributable to the spouse whose activities generated them. Intuitive enough, but the issue can quickly become muddy where the activity was a joint venture by the spouses, with requesting spouse’s level of control, participation, and knowledge all coming into play.
Actual and Constructive Knowledge – Knew or Should have Known
Next, the knowledge element: the requesting spouse must show that, when signing the joint return, he or she didn’t know (and had no reason to know) about the understatement. Actual knowledge is straightforward, but what does a spouse have “reason” to know?
The Treasury Regulations tell us it’s what a “reasonable person in similar circumstances would have known” of the understatement, with “all of the facts and circumstances” considered. Factors include the couple’s finances, the requesting spouse’s education level, business savvy, and any failure to inquire about items “that a reasonable person would question” prior to signing the return.
This element is generally where things are most prone to go off the rails, as proving the absence of something as amorphous as “constructive” knowledge can be a tall order.
An Exercise in Fairness
Next there’s the question of whether, all things considered, it’s “inequitable” to hold the requesting spouse liable for the other spouse’s erroneous items.
This vague inquiry focuses on fairness. The IRS will consider, for example, the extent to which the non-requesting spouse concealed the income-producing activities, and whether the requesting spouse received a significant benefit from those activities. Getting a normal level of support from the non-requesting spouse is fine; enjoying a lavish lifestyle upgrade probably isn’t.
Timely Requesting Relief
Finally, the request for relief must be timely. That means asking the IRS for help within two years of its commencement of “collection activity” against the requesting spouse. Under the Treasury Regulations, that generally means things like receiving an IRS levy notice or the Department of Justice’s filing of a collection suit.
Relief is Mandatory
If § 6015(b) is satisfied, the statute mandates that the requesting spouse “shall be relieved” of the covered liability, along with interest and penalties, and the IRS is not free to withhold that relief.
I.R.C. § 6015(c) – “Proportional” Relief for Separated Spouses
The second route, found in § 6015(c), provides “proportional” relief, capping the requesting spouse’s liability for a tax deficiency to his or her allocable share of it.
This path, too, comes with caveats and complications.
“It’s Over!”
A key difference with § 6015(c) is that it requires the requesting spouse to be divorced or legally separated from the non-requesting spouse when relief is sought, with various anti-abuse rules designed to police it (e.g., no fraudulent transfers in anticipation of seeking relief!).
A Lighter Lift – Actual Knowledge Only
Another critical distinction is that while § 6015(b) relief looks to actual and constructive knowledge, § 6015(c) only considers the former. There is no “reason to know” inquiry.
Still yet, the IRS has the burden of proving the requesting spouse’s actual knowledge. As part of its evaluation of a § 6015(c) request, the IRS will probe all relevant facts and circumstances, including whether the requesting spouse made a deliberate effort to avoid learning about the circumstances giving rise to the deficiency.
Two-Year Cutoff
The same two-year cutoff applies to § 6015(c) requests.
Scope of Relief
If § 6015(c) applies, the requesting spouse’s liability “shall not exceed” his or her allocable share of the deficiency. Allocation occurs under § 6015(d) and looks to how the items would’ve been treated if the spouses had filed separately. Like § 6015(b), this relief is mandatory.
No Refunds!
While innocent-spouse relief under § 6015 can be a basis for a credit or refund, those aren’t available under § 6015(c). In other words, § 6015(c) relief is typically only helpful to a spouse that has not yet paid.
I.R.C. § 6015(f) – Discretionary Relief
The third and final path is found in § 6015(f), which differs markedly from its sisters. Whereas § 6015(b) and § 6015(c) are mandatory, relief under § 6015(f) is discretionary. The statute says the IRS “may relieve” a qualifying spouse from joint liability, meaning that it isn’t required to do so.
This last road, too, comes with its own twists and turns.
Only as a Last Resort
Notably, § 6015(f) relief is meant as a catch-all: it’s only available if the requesting spouse is not otherwise eligible for relief under § 6015(b) or § 6015(c).
Heavily Fact-Dependent
The other consideration is whether, “taking into account all the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or any deficiency (or any portion of either).”
While simple on its face, there is a significant rub: the IRS gets to prescribe the factors it considers when evaluating whether to exercise its discretion. It has done so in Revenue Procedure 2013-34, which provides for three tiers of review.
First, the requesting spouse must show that specified “threshold conditions” are met. That generally means a joint return, absence of relief under § 6015(b) or § 6015(c), a timely claim, and no chicanery underpinning the request.
If the threshold conditions are established, the claim will be then reviewed for “streamlined” relief if the requesting spouse is divorced (or legally separated) from the non-requesting spouse, would suffer economic hardship in the absence of relief, and lacked actual and constructive knowledge about the wrongdoing on the return.
If streamlined relief is available, the IRS will generally grant the request. If it is not, the claim is shunted into a more searching review under a factually intensive, additional multi-factor test detailed at length in Revenue Procedure.
Longer Deadline Dependent upon Whether the Tax Was Paid
Claims for relief under § 6015(f) notably have a more generous deadline that depends upon whether the tax has already been paid.
For unpaid liabilities, the claim must be brought before the expiration of the statutory collections period under § 6502 (generally, 10 years following assessment).
For satisfied liabilities, the claim must be made before the expiration of the statutory refund period under § 6511 (typically the later of three years from the return or two years after the tax is paid). But why would a spouse seek relief for a liability that has been paid? Recall that refunds are generally available to spouses relieved of liability under § 6015.
Some General Points to Consider
Having sketched out a basic map of the routes to relief under § 6015, a few additional considerations deserve mention.
Making a Claim
The mechanics of making a claim for innocent-spouse relief can be as crucial as the merits of the claim itself. Typically, they are made on IRS Form 8857, “Request for Innocent Spouse Relief,” but the IRS will also accept a written statement containing substantially the same information.
The key takeaway here is that the claim must be made to the IRS first. Courts have consistently held that they lack the power to consider innocent-spouse relief before the IRS has weighed in.
Judicial Review
If the IRS denies a claim, what happens next?
It’s clear from the text of § 6015 that the disappointed spouse has a right to seek Tax Court review of that denial within 90 days. But is review also available elsewhere (e.g., District Court) and thus after 90 days have passed? That question is far from settled, particularly with respect to discretionary relief under § 6015(f). Some courts have opined that judicial review is exclusive to the Tax Court; others have entertained claims in the context of refund suits and bankruptcy proceedings.
The upshot is that the spouse’s choice of court when seeking judicial review can play a determinative (and sometimes fatal) role in the outcome. Tread lightly!
Importance of the Administrative Record
The Tax Court’s review of the IRS’s denial of an innocent-spouse claim is limited to the IRS’s administrative record—generally, that’s the information compiled by the IRS during its consideration of the claim. And for most innocent-spouse issues, the requesting spouse has the burden of proof. These twin considerations translate into one key takeaway: the spouse should make a thorough case in the claim itself, as that could be the only chance to tell the story that a court later reviews.
The Non-Requesting Spouse Has Rights, Too
Section 6015 is about fairness, and part of that means giving the non-requesting spouse (who stands to be left holding the bag if relief is granted to the requesting spouse) a seat at the table.
Generally, this means procedural rights: the IRS has to send notice to the non-requesting spouse that relief from the joint liability is being sought, and the non-requesting spouse has the right to intervene in judicial proceedings concerning the joint liability.
The Punchline
The bottom line is that innocent-spouse relief has many nuances and traps for the unwary, with making a claim and then proving it often easier said than done.
A client that was just blindsided by a double-dealing spouse should know that tax relief could be on the table. And a client who recently received an IRS notice that his or her ex just filed for innocent-spouse relief needs to be aware that procedural safeguards ensuring their right to tell their side of the story are available, too.
Competent tax advice can make all the difference in this arena, and every tax advisor should have a working knowledge of this key Code provision.
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