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Income tax refunds can involve substantial sums, and are a frequent source of disputes between divorcing spouses. Before advising a client regarding distribution of a joint tax refund, the matrimonial practitioner should review the applicable law. Federal tax law often dictates a different result from that of state equitable distribution or community property law, and the lawyer must know the difference. Liability for taxes does not necessarily confer a property interest. For example, although the parties to a joint federal income tax return are jointly and severally liable for the taxes payable for the year in question, and although the refund check is drawn to the order of the parties jointly, they do not necessarily have joint ownership rights to the tax refund.
Determining Ownership of the Refund
A refund results from an overpayment of income tax, either by withholding or by estimated tax payments for the year in question. The source of the overpayment determines ownership of the refund. U.S. v. Anthony, No. CIV 97-1772-PHX-SMM, 1999 W.L. 424884 (D. Ariz.1999). Under federal tax law, an overpayment by a married couple is owned by each spouse separately to the extent that he or she contributed to the overpayment. Rev. Rul. 74-611, 1974-2, C.B. 399. Each spouse has a separate interest in the family income as reported on a joint tax return and, consequently, a separate interest in any overpayment. Id.
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