An injured spouse is a taxpayer who files a joint return and all or part of the portion of the joint over-payment (refund) is being, or is expected to be, applied against a legally enforceable past obligation of the other spouse.
An injured spouse is different from an innocent spouse which is a taxpayer that believes, taking into account all the facts and circumstances, only their spouse or former spouse should be held responsible for all or part of the tax liability, including related penalties and interest, due to the tax return having been filed with material misstatements.
By filing Form 8379, the injured spouse may be able to get back his or her share of the refund.
Some examples of legally enforceable debts are as follows:
- Child or spousal support
- Overpaid unemployment compensation that has been ordered to be returned
- State income tax
- Past due federal tax
- Federal non-tax debt (such as a student loan)
The following factors can impact whether any joint overpayment will be applied or used to offset the obligation of a spouse.
- Community Property - If the main home of the injured spouse was in a community property state (AZ, CA, ID, LA, NV, NM, TX, WA, WI), the spouse special rules apply to the calculation of the overpayment. Generally, under state community property laws, 50% of a joint overpayment (except for any earned income credit) is applied to the non-federal tax debts. However, the IRS applies the applicable state's community property law and the states may differ depending upon where the taxpayer resides.
- Allocation - Part III allocates income, adjustments, deductions, refundable and nonrefundable credits, other taxes, and withholding amounts as shown on the joint return. The IRS will use this information to figure the amount of any refund due the injured spouse.
- Filing - Form 8379 may be filed with the tax return. If the return was already filed, send Form 8379 by itself to the IRS center for the state the injured spouse lived in when the return was filed.
To complete Form 8379 in TaxSlayer Pro, from the Main Menu of the tax return (Form 1040) select:
- Miscellaneous Forms
- Injured Spouse Allocation - Answer each Yes/No question presented. The first question asks if the taxpayer is the injured spouse. Answer Yes if the taxpayer is the injured spouse; answer No if the spouse is the injured spouse.
- When all the questions have been answered and you are at the Part III Menu, exit the menu, then click the View button in the TaxSlayer Pro toolbar. In the PDF-printed form, examine Part I to see if the check box for any answer tells you "Stop here. Do not file this form. You are not an injured spouse." If so, the individual is not an injured spouse and you should remove the form as it is unnecessary.
- On the other hand, if the last check box checked in the PDF-printed form indicates you are to go to Part II, then you can complete the remainder of the form. In the menu on-screen, select Part III - Allocation of Items on Joint Return and verify the allocations are correct, adjusting as needed.
Note: This is a guide on entering Form 8379 into the TaxSlayer Pro program. This is not intended as tax advice.
IRS: Instructions for Form 8379 - Injured Spouse Allocation
IRS: Publication 555, Community Property