The general rule is: when a couple files a joint federal tax return, the IRS will hold both taxpayers responsible for any unpaid tax debts. The IRS will even keep any refund available and apply it to a past due tax liabilityeven if the couple later begins to file separately but incurred the original debt while filing jointly. Some taxpayers might file separately to avoid a withheld refund, but this can cause the couple to miss out on valuable tax advantages for married taxpayers. This blog entry will explain the basics of the IRS's Injured Spouse Relief program.
What is an Injured Spouse and what is the Relief the IRS Provides?
For federal tax purposes, an Injured Spouse is someone that is denied a tax overpayment refund or a portion of a refund because the funds were applied to off-set a past-due obligation of a spouse or ex-spouse. This obligation can be a past-due federal tax, state income tax, child or spousal support or even a federal non-tax debt, such as a student loan. In this case, the spouse is injured because they do not have a legal obligation to the past-due amount but by having their overpayment applied to the liability, the IRS is in fact holding the person responsible for the debt.
As a remedy to holding a non-liable person responsible for the federal debts of their spouse or non-spouse, the IRS offers Injured Spouse Relief. To avoid having a refund withheld, a taxpayer can request Injured Spouse Relief at the time they file their tax return. If approved, the injured spouse will not be held responsible for their spouse's federal tax debts, state tax liabilities, etc. The IRS will also determine the amount of tax owed by or overpayment due to each spouse.
Thus, an injured spouse may be able to recover their loss (misapplied refund) should the IRS approve the taxpayer's claim for relief. According to the IRS, in order to qualify for Injured Spouse Relief, a taxpayer must meet the following three conditions:
1. You must not be legally obligated to pay your spouse's past due tax liability.
2. You must report income such as wages, taxable interest, etc., on the joint return.
3. You must have made and reported payments, such as federal income tax withheld from your wages or estimated tax payments, or you claimed the earned income credit or other refundable credit, on the joint return.
Most Americans will need to meet all three of the qualifications to be deemed an injured spouse.
However, if you live in a community property state (Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, or Wisconsin) then you will only need to meet the first qualification. In community property states, over-payments are considered joint property and are generally applied (offset) to legally owed past-due obligations of either spouse. Please note that there are exceptions. The IRS will use each state's rules to determine the amount, if any, that should be refunded to the injured spouse. Under state community property laws, 50% of a joint overpayment (except the earned income credit) is applied to non-federal tax debts such as child or spousal support, student loans, or state income tax. However, state laws differ on the amount of a joint overpayment that can be applied to a federal tax debt. If you believe you are an injured spouse but live in a community property state, you should seek the help of a professional.
Once you have determined the IRS has, or will, withhold a refund because of your spouse's past due taxes, you should print out a copy of IRS Form 8379. You will then need to allocate income, adjustments, deductions, and credits between you and your spouse in Part 2 of the form. After completing the form, you can mail it to the IRS with your tax return, or if you have already filed your return, then you can just mail it to the IRS. For those of you who e-file your return, you can even include Form 8379.
Unfortunately, qualifying for Injured Spouse Relief is not as easy as it may seem. Properly allocating deductions and credits on IRS Form 8379 can be very confusing and a simple error could lead to the IRS rejecting your request. Seeking the help of an experienced tax professional may be in your best interest.
Some people may claim the only way to truly avoid being held responsible for a spouse's back tax liability is to always file separately. However, this can result in the loss of valuable tax incentives for married taxpayers. Instead, engage in an honest conversation with your partner about both of your finances before you get married so you will know in advance about any potential tax problems. If your spouse has tax problems, then you can proactively file for Injured Spouse Relief when you file your return so your part of the refund won't be used to pay your spouse's prior tax debts.
Innocent Spouse vs. Injured Spouse
Injured Spouse Relief is often confused with the similarly named Innocent Spouse Relief, but each program was actually created to help different types of taxpayers. Part of the reason for the confusion is because until 1988, Innocent Spouse Relief was the only option for a married taxpayer to be relieved of a tax liability stemming from their spouse's errors. Fortunately, these days the IRS offers both programs. Unlike Injured Spouse Relief, in order to qualify for Innocent Spouse Relief, taxpayers must prove they had no knowledge of the errors leading to a back tax debt when they signed the tax return.