Form 8379 - Injured Spouse Allocation

Form 8379 - Injured Spouse Allocation

An injured spouse is a taxpayer who files a joint return, and all or part of the portion of the joint overpayment (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 who is a taxpayer that believes, taking into account all the facts and circumstances, that 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's 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 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 out the amount of any refund due to 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 Software from the Federal Section of the tax return (Form 1040), select:

  • Miscellaneous Forms
  • Form 8379 - Read the message regarding the form, then click Continue.
  • Read each question carefully and either check its check box or leave it unchecked as appropriate. Certain answers determine whether or not the spouse is an injured spouse, while other answers affect how the IRS will calculate and disburse the refund.
  • Finally, allocate the income, adjustments, deductions, refundable and nonrefundable credits, other taxes, and withholding amounts as appropriate. Be sure to allocate the standard deduction or itemized deductions:
    • The standard deduction is allocated 1/2 to each spouse unless one of the spouses can be claimed as a dependent by someone else or one or both spouses got the additional standard deduction for age or blindness. In either of these cases, see the Form 8379 instructions for assistance allocating correctly.
    • Itemized deductions need to be examined individually and are either divided in half or allocated to one spouse or the other as appropriate.

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