By filing Form 8379, the injured spouse may be able to get back his or her share of the refund. The following examples are legally enforceable debts that could apply for this purpose:
|• Child or spousal support||• State income tax|
|• Past-due federal tax||• Federal non-tax debt (such as a student loan)|
If the IRS has applied your client's refund against the spouse's tax liability, or your client is concerned that the IRS may do so, select Form 8379. The form requests identifying information for your client and spouse, and information needed to determine how much of the tax - and refund - is attributable to each spouse. The IRS makes the actual calculation that divides the refund between your client and his or her 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 over-payment. Generally, under state community property laws, 50% of a joint over-payment (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 II, Form 8379 lists income and withholding amounts shown on the joint return, amounts allocated to the other spouse. The IRS will 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 place the injured spouse lived when the return was filed.
- The injured spouse is not required to pay the past-due amount,
- The injured spouse reported income such as wages, taxable, interest, etc., on the joint return, and
- The injured spouse made payments such as federal income tax withheld or estimated payments, or claimed the Earned Income Credit or other refundable credit on the joint return.
In order to complete Form 8379 from the Main Menu of the Tax Return (Form 1040) select:
- Miscellaneous Forms
- Injured Spouse Allocation
- Read each question that comes up on the screen carefully. The way you answer the questions will determine whether or not the spouse is considered an injured spouse.
- Next, allocate all amounts of income, adjustments, etc. to the injured spouse. At least one exemption must be allocated to each spouse, or the IRS will reject the return.
Instructions for Form 8379 - Injured Spouse Allocation
Form 8857, Request for Innocent Spouse Relief
Instructions for Form 8857, Request for Innocent Spouse Relief
Publication 555, Community Property
Publication 971, Innocent Spouse Relief
Publication 504, Divorced or Separated Individuals