What is the Difference – Innocent Spouse vs Injured Spouse

An Innocent Spouse vs an Injured Spouse are quite different.

What is the Difference – Innocent Spouse vs Injured SpouseIn all tax situations where you and your spouse are both signatories of a joint return, you are jointly and individually responsible for any tax liability – unless contested and one spouse’s liability is reduced or waived entirely for a particular tax reporting period.

You may qualify as an Innocent Spouse

If taxes were understated because your spouse omitted reporting certain income, claimed improper deductions or credits without your knowledge, an exception may be made to give the you an “innocent spouse pass” for the misdeeds of the other. If you find yourself in such a situation, you may qualify as an innocent spouse and be waived of the tax liability.

You may be entitled to Innocent Spouse Tax Relief

Furthermore, you may be entitled to innocent spouse tax relief if you did not know of the understatement of tax via not reporting all taxable income, or claimed dependencies that were not truthful. If your circumstances are found to meet the criteria set forth by the IRS, and considering all the facts it would be unfair to hold you responsible for the understatement and consequential tax liability you may be waived of some or all of your share of the tax liabilities.

To request innocent spouse relief, you must file IRS Form 8857. If you are denied the request or fall short of the requirements for relief under the innocent spouse petition, there are other forms of tax liability relief afforded the taxpayer such as “equitable relief” or the “separate liability election” which might help you with your IRS matter. You can learn more about these alternatives in the IRS Publication 971, or consult a tax resolution lawyer for professional assistance.

Read more about Innocent Spouse Relief HERE.


You may qualify as an Injured Spouse

Remember the IRS’ first rule: both signatories of a joint return are jointly and individually responsible for any tax liability. That said, when a couple files one or more joint tax returns but one spouse suddenly finds out that he or she is made to share the tax consequences of the actions of the other spouse from debts inured before becoming a couple, that spouse is then adversely affected and may chose to seek relief from the “Injured Spouse” process.

Differences an Injured Spouse is to In Innocent Spouse

Unlike an “Innocent Spouse,” where the tax consequences were a result of and understatement of tax liability, an “Injured Spouse” is part of a joint tax filing where you have a refund coming but but your spouse still owes money to the government for taxes (before the marriage) or many non-tax-related debts that the IRS is the designated collection agency. The IRS is the biggest “collection agency” on the planet and many other government departments use the IRS to make claim such past due amounts and have the IRS deduct them from your joint tax refund. You may qualify as an injured spouse if your joint income tax refund was held back and applied toward your spouse’s past due liabilities for certain debts including:

  • past due federal taxes
  • unpaid state income taxes
  • unpaid child support payments
  • unpaid spousal support payments
  • unpaid student loans

When the IRS holds back that tax refund for joint tax return filers, one spouse can be considered to be the “injured party” or “injured spouse” if the past liability was created entirely by the other spouse.

The IRS has created a process for Injured Spouses

The IRS is a huge, impersonal machine and, as such, doesn’t really know or care that there might be an injured spouse. On the other hand, the government is made up of humans who “might care” about an individual’s dilemma – but first you have to bring it to the attention of the humans within the IRS to take a more-focused look at your unique situation. The IRS has created a process for you to bring to their attention your claim of being and injured spouse. If the IRS is convinced that your circumstances warrant being deemed an “injured spouse,” the IRS might then provide relief to an individual who is unfairly asked to share the consequences of the other spouses’ transgressions or prior debts.

If you find yourself is such a situation, and consider your circumstance match those of an “injured spouse,” you can request to receive your share of the refund by filing IRS Form 8379. On IRS Form 8379 you break down your allocable share of items reported on your joint return. The IRS will then calculates the refund due you (if any) that you are due.

Read more about Injured Spouse HERE.

Innocent Spouse and Injured Spouse Links:

  • Publication 555, Community Property (PDF)
  • Instructions for Form 8379, Injured Spouse Allocation (PDF)
  • Form 8857, Request for Innocent Spouse Relief (PDF)
  • Instructions for Form 8857, Request for Innocent Spouse Relief (PDF)
  • Publication 971, Innocent Spouse Relief (PDF)

Get some help —Make that call!

The Tax Resolution Lawyers at Vincent W. Davis & Associates, provide a no-obligation, confidential consultation and have appointments available for evenings and weekends. Moreover, we accept all major credit cards and can make other payment arrangements so that we can help you get your tax problems straightened out without adding additional layers of financial burden on you and your family. We have seven convenient offices throughout Southern California, including Los Angeles County, Orange County, Riverside County and San Bernardino County. To schedule a confidential free consultation with one of our Tax Resolution Lawyers, call 626-446-6442.


Arcadia Office
150 N. Santa Anita Ave,
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Arcadia, CA 91006
Phone: (626) 446-6442
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Irvine Office
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Irvine, California, 92614
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Ontario Office
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City of Ontario, California, 91761
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Phone: (714) 721-3822