10810: 8379 or 8857 - Injured or Innocent Spouse

A variety of situations may be present, but typically:

• An injured spouse (Form 8379, Injured Spouse Allocation) is asking the IRS not to apply his or her part of a refund from a joint return to a past-due debt owed by the other spouse. Form 8379 can be e-filed.
• An innocent spouse (Form 8857, Request for Innocent Spouse Relief) is asking the IRS not to hold him or her liable for tax resulting from actions of the other spouse in a joint return. Form 8857 is not transmitted with an e-filed return, but must be paper-filed separately.

Form 8379 is a request by one spouse to avoid having his or her part of an overpayment (or refund) applied to a debt owed by the other spouse. The “allocation” is essentially a request to divide the overpayment between the spouses. The Instructions for Form 8379 explain:

"Form 8379 is filed by one spouse (the injured spouse) on a jointly filed tax return when the joint overpayment was (or is expected to be) applied (offset) to a past-due obligation of the other spouse. By filing Form 8379, the injured spouse may be able to get back his or her share of the joint refund."

The debt of the other spouse might be a "legally enforceable past-due federal tax, state income tax, child or spousal support, or a federal non-tax debt, such as a student loan."

Form 8857 is similar, but seeks relief from joint and several federal tax liability. The Instructions for Form 8857 state that when you file the form:

"Four types of relief are available. They are:
   1. Innocent spouse relief.
   2. Separation of liability relief.
   3. Equitable relief.
   4. Relief from liability arising from community property law."

The instructions explain:

"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 the income, deductions, or credits of your spouse or former spouse. You remain jointly and severally liable for taxes, and the IRS can still collect them from you, even if you later divorce and the divorce decree states that your former spouse will be solely responsible for the tax.

If you believe, taking into account all the facts and circumstances, only your spouse or former spouse should be held responsible for all or part of the tax, you should request relief from the tax liability, including related penalties and interest. To request relief, you must file Form 8857. The IRS will use the information you provide on the form, and any attachments you submit, to determine if you are eligible for relief. The IRS will contact you if additional information is needed."

The Instructions for Form 8857 provide a discussion of all four types of relief, which you can review there. The criteria are different for each type of relief to cover a variety of situations.  For example, the criteria for the first type, innocent spouse relief, include these:

"Innocent Spouse Relief

You may be allowed innocent spouse relief only if all of the following apply.

• You filed a joint return for the year(s) entered on line 3.
• There is an understated tax on the return(s) that is due to  erroneous items (defined below) of the person with whom you filed the joint return.
• You can show that when you signed the return(s) you did not know and had no reason to know that the understated tax existed (or the extent to which the understated tax existed).
• Taking into account all the facts and circumstances, it would be unfair to hold you liable for the understated tax."

Note: If form 8857 isn't generating, verify your answer to line 1 on screen 8857, which corresponds to Part I question 1 on Form 8857. A "Yes" answer is required to generate the form.

For more information about

• Innocent spouse relief, see Publication 971, Innocent Spouse Relief
• Divorced or separated individuals and injured spouse relief, see Publication 504, Divorced or Separated Individuals.