Injured Spouse vs. Innocent Spouse

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I represent taxpayers in Gainesville and the state of Florida who have tax issues with the IRS and Florida Department of Revenue. Couples who file jointly, become liable for the total taxes reported and any future taxes that might be assessed by the IRS. There are two forms of relief when one of the spouses gets caught up in joint liability issues.

Injured Spouse Claims applies to married filing joint people in which the withholding tax credits of one spouse were used to offset the liabilities of the other spouse. These liabilities can be the result of past due tax debts, child support, and other nontax government debt such as student loans. How much of these debts can be attributed to both spouses depends upon state law. Florida is not a community property state and therefore individuals are not automatically liable for their spouse’s debts. File Form 8379 to request that any overpayments of your taxes not be applied against your partners tax debts.

Innocent Spouse Claims are a better option for people caught up in these situations. Community property states have different rules for determining who is liable for the taxes. Luckily for people living in Florida, we are not in a community property state and the Innocent Spouse rules work well for us.

Injured Spouse does not relieve either of the spouses for the taxes reported or assessed on a joint return. Innocent Spouse Claims on the other hand can save someone who gets assessed additional taxes that they had no way of knowing about. This frequently happens when one spouse is self-employed and the other is an employee with withholding taxes.

To qualify for Innocent Spouse, you must

  •          Have filed a joint return
  •          The liability is attributable to erroneous items of the non-requesting spouse
  •          The taxpayer did not know and had no reason to know about the erroneous item that produced an understatement of the taxes
  •          The spouses were divorced, legally separated, or had not lived together for the 12 months prior to filing the joint return. Or, taking all the facts and circumstances together, assessing the additional taxes would be inequitable.

Use Form 8857 to file Innocent Spouse Claims. There is a time limit on this. You have only two years from the start of collection activities to make this claim. If the taxpayer does not have the ability to pay the taxes, be sure and point this out. Its an indicator that the injured spouse did not receive any benefits from the unreported income of the other spouse.

If you or someone you know has received a Notice of Intent to Levy or some other federal or state tax issue, please feel free to contact me at either (352) 317-5692 or email


Jim Payne, CPA


Gainesville, FL

Cell (352) 317-5692

Office (352) 376-9401

Fax (352) 376-9440


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Jim Payne, CPA

CPA firm practicing in the area of IRS Collections
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