Injured v. Innocent Spouse Tax Relief
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Injured v. Innocent Spouse Tax Relief

The Perturbing New Treatment of Patents Under the Tax Cut & Jobs Act (TCJA)

Injured v. Innocent Spouse Tax Relief

You may be an injured spouse if you file a joint tax return and all or part of your portion of a refund was, or is expected to be applied to your spouse’s past due financial obligations. For consideration of this nature you must have paid federal income tax or claimed a refundable tax credit, such as the Earned Income Credit or Additional Child Tax Credit on the joint return, and not be legally obligated to pay the past-due debt.

To file for Injured Spouse Relief use IRS Form 8379, Injured Spouse Allocation along with your original tax return. Or your may file it by itself after you receive an IRS notice. It is usually most efficient to file Form 8379 electronically. If however you file a paper tax return you can include Form 8379 with your return but be sure to write “INJURED SPOUSE” at the top left of the Form 1040, 1040A or 1040EZ to help alert the IRS to process your allocation request before an offset occurs. If you are filing Form 8379 by itself, it must show both spouses’ Social Security numbers in the same order as they appeared on your income tax return. You, the “injured” spouse, must sign the form.

Innocent Spouse Relief is separate and distinct from Injured Spouse Relief. Innocent Spouse Relief is relief from a joint liability and applies only in certain limited circumstances. In 2011 the IRS eliminated the two-year time limit that applies to certain relief requests. When you file a joint income tax return, the law makes both you and your spouse responsible for the entire tax liability often referred to as joint and several liability. Joint and several liability applies not only to the tax liability you show on the return but also to any additional tax liability the IRS determines to be due, even if the additional tax is due to income, deductions, or credits of your spouse or former spouse.

You remain jointly and severally liable for the taxes, and the IRS still can collect from you, even if you later divorce and the divorce decree states that your former spouse will be solely responsible for the tax. In some cases, a spouse (or former spouse) will be relieved of the tax, interest, and penalties on a joint tax return. Three types of relief are available to married persons who filed joint returns.

1. Innocent spouse relief.
2. Separation of liability relief.
3. Equitable relief.

Innocent spouse relief is claimed by filing IRS Form 8857, Request for Innocent Spouse Relief. Please be sure to review IRS Publication 971, Innocent Spouse Relief before filing IRS Form 8857. Special rules apply in community property states. For more information about the factors used to determine whether you are subject to community property laws, see IRS Publication 555, Community Property.



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