This article relates to” injured spouse relief” and not “innocent spouse relief.”
You are an injured spouse if your share of the overpayment shown on your joint tax return was, or is expected to be, applied (offset) against your spouse’s legally enforceable past-due federal taxes, state income taxes, child or spousal support payments, or a federal nontax debt, such as a student loan. If you are an injured spouse, you may be entitled to receive a refund of your share of the overpayment. For more information, see Form 8379, Injured Spouse Allocation link at the end of this article.
Innocent Spouse – When you file a joint income tax return, the law makes both you and your spouse responsible for the entire tax liability. This is called 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.
- Innocent spouse relief.
- Separation of liability relief.
- Equitable relief.
 Married persons who did not file joint returns, but who live in community property states, may also qualify for relief.Â
Insofar as the provisions for “injured spouse relief” are concerned, it is generally advantageous for married taxpayers to file a joint income tax return. The “Married Filing Jointly” tax structure provides the lowest income taxes. However, under certain circumstances, there are legal and financial risks associated with filing these returns, including (but not limited to) the following:
- You may have received poor or incorrect advice from your spouse (husband or wife as appropriate) who actually completed and filed the return, with or without your knowledge;
- You received the wrong information or advice from a friend, tax preparer, CPA, or attorney which you relied on to prepare your tax return. Regardless of the information source, you are still held 100% accountable for all of the data and information in your tax return;
-  You did not read and fully understand all of the information in your tax return before it was filed. There were one or more errors in the return, and you have not yet filed an amended tax return for that tax year;
- The person who actually prepared and filed the return intentionally committed a fraud against the U.S. Government or other illegal act (i.e. claimed the First Time Homebuyer tax credit when you did not meet all of the qualifications). (more…)