Innocent/Injured Spouse Relief Fact Sheet for Advocates
prepare d by SC Applese ed Lega l Justice Cen ter for the T ransactio nal Unit of T he Sou th Carolina Centers for Equal Justice
Injured Spouse
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Injured Spouse is the spou se not ow ing past du e tax deb t, child suppo rt, state income tax debt, student loans, etc. but whose refund (or part of the refund) will be applied a gainst the at-fault spo use s past-du e debts. i.e., a person is an injured spouse if he or she meets the following: filed a joint tax return; have repo rted income (e.g., wages or intere st); have made and reported tax payments (e.g., withholdings from wages) or claimed EIC (or other refundable credit); and, have an overpayment (all or part of which can be applied to the past-due amou nt)
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If one spouse s refund is going to be held by the government, the injured spouse can either --file a separate return, or --file a joint return with a Form 8379.
Federal
Use IRS Form 8379, Injured Spouse Claim and Allocation File Form 8379 with return as an attachm ent (in the o rder of atta chme nts specified) and with Injured Spouse inserted in upper left corner of return; OR, Submit Form 8379 to the same IRS Service Ce nter (with copies of a ll W-2's, W-2G s, and 1099-R s)
State
South Carolina DOES NOT provide for injured spouse relief for state income tax.
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Delinquen t Child-Supp ort/Refun d Intercep tion-- If the non -cust odia l pare nt is de linqu ent in paying c hild-supp ort, Child Su pport En forcem ent (a D ivision of SC DSS) m ay interce pt tax refun ds. To collect th e intercep ted refun d, contac t Child Support Enforcement. Not sure? To find ou t if the injured s pouse needs to file a Form 8379 , --the at-fault spouse can ask any agency that might be claiming the refund for a past-du e debt, or --call Financial Management Service Help Desk 1-800-304-3107.
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Innocent/Injured Spouse Relief Fact Sheet for Advocates
prepare d by SC Applese ed Lega l Justice Cen ter for the T ransactio nal Unit of T he Sou th Carolina Centers for Equal Justice
Innocent Spouse and Other Equitable Relief
Federal
Innocent Spouse (This is different from Injured) refer s to th e spo use w ho is n ot at fa ult an d sho uld receive a portion of a joint return becaus e the atfault spouse (or form er spouse) failed to rep ort properly income or deductions/credits. The innocent spouse cannot have known about the error nor have reason to have known of the error when he or she signed joint return. Use Form 8857.
State
South Carolina has similar relief available. For state income tax purposes, the innocent spouse must meet the following conditions: a. You filed a joint return which has an understatement of tax attributable to erroneous items of your spouse. b. You establish that at the time you signed the joint return you did not know, and had no reason to know, that there was an understatement of tax. c. Taking into account all the facts and circum stan ces, it w ould be un fair to hold y ou lia ble for the un derstate men t of tax. Use SC8857.
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Relief by Sep aration of Liability if the taxpayer is no longer married to or is legally separated from the spouse, or is a widow and a joint return was filed, OR the taxpayer was not a member of the same h ouseh old as the spouse with who m a j oint re turn was filed w ithin the last 12 months. This relief is available irrespective of whether the taxp ayer requ ests in noce nt spo use r elief. It is relief for a situation in which taxes have been understated. It divides the liability between the spouse s. Use Form 8857. Equitable Relief may be a vailable for taxpaye rs who are neither eligible for innocent spouse nor separation of liability relief. Qualifying requires that taking into account all the facts a nd cir cum stan ces, it w ould be un fair to hold [the taxpayer] liable for the understatement or underp ayme nt of tax. Requ est Equ itable Re lief by having the taxpayer complete Form 8857 or sign a written statement containing the same info required by 8857.
Relief by Sep aration of Liability same as federal Use SC8857.
Equitab le Relief same as federal Request Equitable Relief by having the taxpayer write a letter to the SC Department of Revenue providing the taxpayer s name, address, phone num ber, tax ye ars involve d, and co mplete statement of facts.
Must re quest inn ocent sp ouse, se paration of liability, or equ itable relief no later than 2 years after the date the IRS first attempted to collect the tax.