injured spouse - law or policy

[Kimokeo]

I was at my leisure in the local park re-reading the entire internal revenue code. After completing the last page, I turned to the beginning and began again.

To my amazement, I noticed in the index Innocent Spouse. I went backwards and passed the section on Inhaling which, if I remember what I read, had something to do with presidents.

Anyway, I went further back and found no reference for Injured Spouse.

After much exhaustive reading, including the entire IRC, I've come to the conclusion that I must have missed it.

Can someone show me where in the IRC or elsewhere the injured spouse issue. When I looked up the 6-year rule, I found myself directed to Title 28 and judicial issues.

So, is this law or policy?

[jcolvin2]

The term "injured spouse" relates to non-liable spouses who file joint returns with persons who owe federal tax debts. Using this form (Form 8379), the non-liable (or "injured") spouse allocates a portion of the joint refund to each spouse. The IRS can only take the portion that belongs to the person who owes federal tax debts, and cannot take the portion of the refund belonging to the non-liable spouse. There is no specific statute establishing "injured spouse." However, the principle that the IRS can only recover from the property interest of a liable person (and not from the property of one who accidentially marries into tax debt) is fairly well established in the case law.

[Dezcad]

I was at my leisure in the local park re-reading the entire internal revenue code. After completing the last page, I turned to the beginning and began again.

To my amazement, I noticed in the index Innocent Spouse. I went backwards and passed the section on Inhaling which, if I remember what I read, had something to do with presidents.

Anyway, I went further back and found no reference for Injured Spouse.

After much exhaustive reading, including the entire IRC, I've come to the conclusion that I must have missed it.

Can someone show me where in the IRC or elsewhere the injured spouse issue. When I looked up the 6-year rule, I found myself directed to Title 28 and judicial issues.

So, is this law or policy?

"Innocent Spouse" and "Injured Spouse" are two different terms and concepts. "Innocent Spouse" is dealt with under Sec 6015. See previous post for "Injured Spouse".

[Quixote]

There is no specific statute establishing "injured spouse

With one exception. IRC §6402(d)(3)(B)(ii) sets out the injured spouse protection for offsets due to overpaid OASDI benefits. Treasury regulations apply the same protection, in almost the same words, to spouses injured by other offsets.

When I looked up the 6-year rule ...

In the context of your post I assume that you are referring to the 6 year limitation period for filing injured spouse claims. At present, the authors of the portion of the IRM dealing with injured spouse allocations does not believe the 6 year limitation period for claims against the government is applicable to injured spouse allocations, which they believe not to be claims at all. The IRS appears to be fully aware of the absurd implication of that position, i.e., that for the overwhelming majority of offsets, which have been occurring since 1984, there is no deadline for filing Form 8379.

[Kimokeo]

"The IRS can only take the portion that belongs to the person who owes federal tax debts, and cannot take the portion of the refund belonging to the non-liable spouse. "

JC, how would you explain the Stimulus Refund being split 50/50 due to injured spouse?

Dezcad, don't worry - I know the difference between Innocent and Injured. It's all a matter of looking for the fleur-de-lis upon her.

[jcolvin2]

"The IRS can only take the portion that belongs to the person who owes federal tax debts, and cannot take the portion of the refund belonging to the non-liable spouse. "

JC, how would you explain the Stimulus Refund being split 50/50 due to injured spouse?

While, I have not delved into the matter too deeply (primarily because I was not eligible for a stimulus refund) I think the stimulus refund is a fictitious "advance" on next year's refund. With no way to know at this point how much would be allocated to the liable and the non-liable spouse (because returns have not been filed for 2008), a 50/50 split was a simple administrative solution.

[Kimokeo]

" a 50/50 split was a simple administrative solution."

I was asked, unoffically, for my best guess. Since I, too, looked to 2008 for the allocation, it wouldn't be possible in advance. I assumed a simple administrative solution.

I guess the guess would a good guess, unoffically.

[Kimokeo]

I found the answer to my question.

IRC 6428 (f) (2) Joint Returns "...half of such refund or credit shall be treated as having been made or allowed to each individual filing such return."