Community property laws apply to married individuals or registered domestic partners living in community property states who file separate federal tax returns. The community property states are:
- New Mexico
Each state's community property laws determine how both income and property should be allocated for federal purposes, whether community or separate.
If the filing status on an individual tax return is married filing separately and the taxpayer lives in a community property state, Form 8958 must be completed and filed with the return.
Form 8958 is also needed for the two separately filed tax returns of registered domestic partners in a community property state who are filing as single, head of household, or qualifying widow(er).
Not all income is community income needing to be divided between spouses/RDPs. For example:
- Money earned while domiciled in a noncommunity property state is separate income;
- Property that was owned separately before marriage is considered separate while married, unless the taxpayer and spouse agree to convert it to community property;
- Inherited or gifted property received separately;
- Property purchased with separate funds;
- Property converted from community to separate by agreement;
- In Arizona, California, Nevada, New Mexico, and Washington, income from separate property is the separate income of the spouse who owns the property. (In Idaho, Louisiana, Texas, and Wisconsin, income from most separate property is community income.)
- Real estate may or may not be treated as community property depending on the laws of the state;
- Income earned after spouses are separated but before a divorce decree is issued may be community income or separate income depending on the state;
- A state may allow a spousal agreement as to whether to treat income or property as community or separate;
- Special rules apply to spouses who live apart for the entire year.
For these reasons and more, TaxSlayer Pro does not attempt to allocate the items in the tax return between the spouse's filing MFS; the preparer must determine the amount to be entered for each item in the tax return.
Generally, each spouse/RDP must report half of all combined community income and deductions in addition to his or her separate income and deductions. For example, each spouse/RDP reports half of their own W-2 wages and half of their spouse's/RDP's W-2 wages on their tax return. Community income generally includes:
- Income from community property
- Salaries, wages, or pay for services of the taxpayer and the taxpayer's spouse or RDP during the marriage or registered domestic partnership
- Real estate that is treated as community property under the laws of the state where the property is located
To properly report community income in a married filing separate tax return or the tax return of an RDP, you will enter half of the taxpayer's AND the half of the spouse's/RDP's community income items separately, dividing the amounts from each in half.
For example, Spouse/RDP A and Spouse/RDP B are domiciled in a community property state and filing separate tax returns, and you are preparing A's return. Each spouse has a W-2 as follows:
|W-2 Box 1||W-2 Box 2|
You will enter both W-2s A's tax return. For A's W-2, enter $20,000 in box 1 (half of the community income) and $2,000 box 2 (half of the community withholdings). Likewise, for B's W-2 enter $30,000 in box 1 (half of the community income) and $3,000 in box 2 (half of the community withholdings).
In the Income menu, enter one-half of any other community income and enter A's separate income in full. After all the income, credits, deductions, and adjustments have been entered you will use Form 8958 to allocate the community income amounts between Spouse A and Spouse B.
To access Form 8958, from the Main Menu of the tax return (Form 1040) select:
- Miscellaneous Forms
- MFS Allocation for Community Property States (8958) - The taxpayer's information from the tax return will pull to the taxpayer's column of the form.
- For each menu line, enter the spouse's/RDP's community amounts as appropriate. The total column will reflect the total amount of all community items.
Note: This is a guide on preparing the tax return for a taxpayer/RDP and allocating community income on Form 8958 in the TaxSlayer Pro program. This is not intended as tax advice.