Many married taxpayers choose to file a joint tax return because of the benefits to be derived from this filing status. On a joint return, both taxpayers are jointly and individually responsible for the tax and any interest or penalty due on the return, even if they later divorce. This is true even if a divorce decree should state that your former spouse will be solely responsible for any amounts due on previously filed joint returns.
The situation can exist, then, where one spouse could be held responsible for all the tax due, even if all the income was earned by the other spouse. In cases like this, the IRS, in the interest of equity may allow a spouse in such a situation to be relieved of the tax, interest, and penalties that are due.
If you’re married and your spouse has an unpaid tax liability on a joint return that you filed together, it is likely that the IRS will withhold the total refund, including the part that’s due to you, to offset some or all of your spouse’s liability. In this case, you can be considered an injured spouse.
Generally, if a taxpayer owes past-due federal tax, state income tax, child or spousal support, or certain federal non-tax debts such as student loans, etc., all or part of any refund due to the taxpayer may be used to pay (offset) the past due amount. If you filed a joint tax return with your spouse, who owes a federal or state obligation, all or part of your tax refund will usually be applied to your spouse’s past due debt. Tax law, however, allows you to claim a relief under the injured spouse allocation, to ensure that the IRS does not withhold your part of the tax refund. Therefore, if only one spouse owes the liability, under this provision, the other spouse may be entitled to claim his or her share of the refund.
If the tax refund on your joint return has been withheld by the IRS, because your spouse has a past-due debt, you can get back your share of the tax refund by filing Form 8379, Injured Spouse Allocation. You can file Form 8379 with Form 1040, or you can file it as a stand-alone form after Form 1040 has been filed.
If you consider yourself an injured spouse, you will be eligible to file Form 8379, only if all the following conditions apply:
• You must not be the party who is required to pay the past-due amount.
• You must have reported some sort of income such as wages, taxable interest, etc., on the joint return.
• You must have made or reported payments such as federal tax withheld from your wages or estimated tax payments, or must have claimed a refundable credit, such as the earned income credit or the additional child tax credit.
If your home was in a community property state during the year, you may file Form 8379 even if only one condition above applies.
On Form 8379, you must allocate the following between you and your spouse:
• Other taxes.
• Payments shown on the tax return.
Based on the allocations you made on Form 8379, the IRS will figure the amount of any refund due to the injured spouse. The injured spouse allocation is used only to get a refund of your part of a tax refund that would otherwise have been used to pay your spouse’s past-due debt.
The primary objective of this article is to empower taxpayers to learn to do their own taxes. For more information on how to deal with injured spouse situations, grab yourself a copy of “Doing Your Own Taxes is as Easy as 1, 2, 3,” ($6.98) on TaxConnections.com.