How long do you have to file for relief?

General Rules

In general, you must file Form 8857, Request for Innocent Spouse Relief

  • No more than 2 years after the first time the IRS attempts to collect the tax.
  • 3 years of the filing date of the original return or two years after the tax was paid

Some of the same rules that extend your ability to claim a refund in the case of an original or amended return, also apply to filing Form 8857

Filing Earl

However, it is a good idea to file the form, as soon as possible. There are a few reasons for this:

  • To ensure that the IRS receives the request on time
  • To ensure you do not lose your right to file a claim
  • Filing it early will save you years of headaches.

Alternate Rules for Requesting Equitable Relief

Since July 25, 2011 and Notice 2011-70, the IRS has granted more time to claim equitable relief. The exact amount of time depends on a few factors.

You may request relief at any time the IRS has the authority to collect the tax.

If the statute of limitations has passed on the IRS’s ability to collect, you may no longer request equitable relief. In most cases, this isn’t a problem because the end goal is simply to settle or discharge the amount owed for as little as possible. There are, however, situations where a person might want the tax relieved rather than simply outside the collection statute of limitations

If you are requesting equitable relief for a balance due AND a credit/refund

Two separate time periods apply are counted but the same rules. A separate clock for filing on time exists for

  • balance due amounts
  • credit/refund amounts

It is possible to file that is on time for one of these amounts and not the other.

Key Takeaway:

File a properly prepared claim as soon as you possibly can. The rules timely filed claims are complex and easy to mess up if you are not familiar with them. 

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