Table of Contents
Whether you have community property and community income depends on the state where you are domiciled. If you and your spouse have different domiciles, check the laws of each to see whether you have community property or community income.
You have only one domicile even if you have more than one home. Your domicile is a permanent legal home that you intend to use for an indefinite or unlimited period, and to which, when absent, you intend to return. The question of your domicile is mainly a matter of your intention as indicated by your actions. You must be able to show with facts that you intend a given place or state to be your permanent home. If you move into or out of a community property state during the year, you may or may not have community income.
Factors considered in determining domicile include:
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Where you pay state income tax,
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Where you vote,
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Location of property you own,
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Your citizenship,
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Length of residence, and
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Business and social ties to the community.
If you file a federal tax return separately from your spouse, you must report half of all community income and all of your separate income. Generally, the laws of the state in which you are domiciled govern whether you have community property and community income or separate property and separate income for federal tax purposes. The following is a summary of the general rules. These rules are also shown in Table 1.
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That you, your spouse, or both acquire during your marriage while you and your spouse are domiciled in a community property state.
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That you and your spouse agreed to convert from separate to community property.
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That cannot be identified as separate property.
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Community property.
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Salaries, wages, and other pay received for the services performed by you, your spouse, or both during your marriage.
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Real estate that is treated as community property under the laws of the state where the property is located.
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Property that you or your spouse owned separately before your marriage.
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Money earned while domiciled in a noncommunity property state.
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Property that you or your spouse received separately as a gift or inheritance during your marriage.
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Property that you or your spouse bought with separate funds, or acquired in exchange for separate property, during your marriage.
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Property that you and your spouse converted from community property to separate property through an agreement valid under state law.
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The part of property bought with separate funds, if part was bought with community funds and part with separate funds.

Table 1. General Rules — Property and Income: Community or Separate?
Community property is property:
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Separate property is:
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Community income
1,2,3 is income from:
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Separate income
1,2 is income from:
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| 1 Caution: In Idaho, Louisiana, Texas, and Wisconsin, income from most separate property is community income. |
| 2 Caution: Check your state law if you are separated but do not meet the conditions discussed in Spouses living apart all year. In some states, the income you earn after you are separated and before a divorce decree is issued continues to be community income. In other states, it is separate income. |
| 3 Caution: Under special rules, income that can otherwise be characterized as community income may not be treated as community income for federal income tax purposes in certain situations. See Community Property Laws Disregarded. |
If you file separate returns, you and your spouse must be able to identify your community and separate income, deductions, credits, and other return amounts according to the laws of your state.
The following is a discussion of the general effect of community property laws on the federal income tax treatment of certain items of income.
Example.
Henry Wright retired this year after 30 years of civil service. He and his wife were domiciled in a community property state during the past 15 years.
Since half the service was performed while the Wrights were married and domiciled in a community property state, half the civil service retirement pay is considered to be community income. If Mr. Wright receives $1,000 a month in retirement pay, $500 is considered community income—half ($250) is his income and half ($250) is his wife's.
When you file separate returns, you must claim your own exemption amount for that year. (See your tax package instructions.)
You cannot divide the amount allowed as an exemption for a dependent between you and your spouse. When community funds provide support for more than one person, each of whom otherwise qualifies as a dependent, you and your spouse may divide the number of dependency exemptions as explained in the following example.
Example.
Ron and Diane White have three dependent children and live in Nevada. If Ron and Diane file separately, only Ron can claim his own exemption, and only Diane can claim her own exemption. Ron and Diane can agree that one of them will claim the exemption for one, two, or all of their children and the other will claim any remaining exemptions. They cannot each claim half of the total exemption amount for their three children.
If you file separate returns, your deductions generally depend on whether the expenses involve community or separate income.
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Community business or investment income are generally divided equally between you and your spouse. Each of you is entitled to deduct one-half of the expenses on your separate returns.
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Separate business or investment income are deductible by the spouse who earns the income.
Example.
You live in a community property state. You are separated but the special rules explained later under Spouses living apart all year do not apply. Under a written agreement, you pay your spouse $12,000 of your $20,000 total yearly community income. Your spouse receives no other community income. Under your state law, earnings of a spouse living separately and apart from the other spouse continue as community property.
On your separate returns, each of you must report $10,000 of the total community income. In addition, your spouse must report $2,000 as alimony received. You can deduct $2,000 as alimony paid.
The following is a discussion of the general effect of community property laws on the treatment of certain credits, taxes, and payments on your separate return.
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Half the community income and deductions,
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All of your separate income and deductions, and
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Your own exemption and any exemptions for dependents that you may claim.

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If, under the laws of your state, community property is subject to premarital or other separate debts of either spouse, the full joint overpayment may be used to offset the obligation.
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If, under the laws of your state, community property is not subject to premarital or other separate debts of either spouse, only the portion of the joint overpayment allocated to the spouse liable for the obligation can be used to offset that liability. The portion allocated to the other spouse can be refunded.
The following discussions are situations where special rules apply to community property.
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You treat the item as if only you are entitled to the income, and
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You do not notify your spouse of the nature and amount of the income by the due date for filing the return (including extensions).
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You did not file a joint return for the tax year.
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You did not include an item of community income in gross income.
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The item of community income you did not include is one of the following:
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Wages, salaries, and other compensation your spouse (or former spouse) received for services he or she performed as an employee.
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Income your spouse (or former spouse) derived from a trade or business he or she operated as a sole proprietor.
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Your spouse's (or former spouse's) distributive share of partnership income.
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Income from your spouse's (or former spouse's) separate property (other than income described in (a), (b), or (c)). Use the appropriate community property law to determine what is separate property.
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Any other income that belongs to your spouse (or former spouse) under community property law.
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You establish that you did not know of, and had no reason to know of, that community income.
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Under all facts and circumstances, it would not be fair to include the item of community income in your gross income.
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You and your spouse lived apart all year.
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You and your spouse did not file a joint return for a tax year beginning or ending in the calendar year.
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You and/or your spouse had earned income for the calendar year that is community income.
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You and your spouse have not transferred, directly or indirectly, any of the earned income in condition (3) above between yourselves before the end of the year. Do not take into account transfers satisfying child support obligations or transfers of very small amounts or value.
Example.
George and Sharon were married throughout the year but did not live together at any time during the year. Both domiciles were in a community property state. They did not file a joint return or transfer any of their earned income between themselves. During the year their incomes were as follows:
| George | Sharon | |||
| Wages | $20,000 | $22,000 | ||
| Consulting business | 5,000 | |||
| Partnership | 10,000 | |||
| Dividends from separate property | 1,000 | 2,000 | ||
| Interest from community property | 500 | 500 | ||
| Total | $26,500 | $34,500 | ||
Under the community property law of their state, all the income is considered community income. (Some states treat income from separate property as separate income—check your state law.) Sharon did not take part in George's consulting business.
Ordinarily, on their separate returns they would each report $30,500, half the total community income of $61,000 ($26,500 + $34,500). But because they meet the four conditions listed earlier under Spouses living apart all year, they must disregard community property law in reporting all their income (except the interest income) from community property. They each report on their returns only their own earnings and other income, and their share of the interest income from community property. George reports $26,500 and Sharon reports $34,500.
The marital community may end in several ways. When the marital community ends, the community assets (money and property) are divided between the spouses.
The following discussion does not apply to spouses who meet the conditions under Spouses living apart all year, discussed earlier. Those spouses must report their community income as explained in that discussion.
Ordinarily, filing a joint return will give you a greater tax advantage than filing a separate return. But in some cases, your combined income tax on separate returns may be less than it would be on a joint return.
If you file separate returns:
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You should itemize deductions if your spouse itemizes deductions, because you cannot claim the standard deduction,
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You cannot take the credit for child and dependent care expenses in most instances,
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You cannot take the earned income credit,
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You cannot exclude any interest income from qualified U.S. savings bonds that you used for higher education expenses,
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You cannot take the credit for the elderly or the disabled unless you lived apart from your spouse all year,
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You may have to include in income more of any social security benefits (including any equivalent railroad retirement benefits) you received during the year than you would on a joint return,
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You cannot deduct interest paid on a qualified student loan,
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You cannot take the education credits (the Hope and lifetime learning credits),
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You may have a smaller child tax credit than you would on a joint return, and
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You cannot take the exclusion or credit for adoption expenses in most instances.

If you file separate returns, you and your spouse must each report half of your combined community income and deductions in addition to your separate income and deductions. List only your share of the income and deductions on the appropriate lines of your separate tax returns (wages, interest, dividends, etc.). For a discussion of the effect of community property laws on certain items of income, deductions, credits, and other return amounts, see Identifying Income, Deductions, and Credits, earlier.
Attach a worksheet to your separate returns showing how you figured the income, deductions, and federal income tax withheld that each of you reported. The Allocation Worksheet (Table 2) shown later can be used for this purpose. If you do not attach a worksheet, you and your spouse should each attach a photocopy of the other spouse's Form W-2 or 1099-R. Make a notation on the form showing the division of income and tax withheld.
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1
Total Income (Community/Separate) |
2
Allocated to Husband |
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Allocated to Wife |
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| 1. | Wages (each employer) | ||||
| 2. | Interest Income (each payer) | ||||
| 3. | Dividends (each payer) | ||||
| 4. | State Income Tax Refund | ||||
| 5. | Capital Gains and Losses | ||||
| 6. | Pension Income | ||||
| 7. | Rents, Royalties, Partnerships, Estates, Trusts | ||||
| 8. | Taxes Withheld | ||||
| 9. | Other items such as: Social Security Benefits, Business and Farm Income or Loss, Unemployment Compensation, Mortgage Interest Deduction, etc. | ||||
Walter and Mary Smith are married and domiciled in a community property state. Their two children (18-year-old twins) and Mary's mother live with them and qualify as their dependents. Amounts paid for their support were paid out of community funds.
Walter received a salary of $53,424. Income tax withheld from his salary was $4,704. Walter received $132 in taxable interest from his savings account. He also received $217 in dividends from stock that he owned. His interest and dividend income are his separate income under the laws of his community property state.
Mary received $200 in dividends from stock that she owned. This is her separate income. In addition, she received $4,200 as a part-time dental technician. No income tax was withheld from her salary.
The Smiths paid a total of $5,775 in medical expenses. Medical insurance of $1,050 was paid out of community funds. Walter paid $4,725 out of his separate funds for an operation he had.
The Smiths had $10,264 in other itemized deductions, none of which were miscellaneous itemized deductions subject to the 2%-of-adjusted-gross-income limit. The amounts spent for these deductions were paid out of community funds.
To see if it is to the Smiths' advantage to file a joint return or separate returns, a worksheet (Table 3, shown next) is prepared to figure their federal income tax both ways. Walter and Mary must claim their own exemptions on their separate returns.
The summary at the bottom of the worksheet compares the tax figured on the Smiths' joint return to the total tax figured by adding the tax amounts on their separate returns. By filing separately under the community property laws of their state, the Smiths save $243 in income tax.
If the Smiths were domiciled in Idaho, Louisiana, Texas, or Wisconsin, the result would be slightly different because in those states income from separate property generally is treated as community income. If they lived in one of those states, the interest from Walter's savings account and the dividends from stock owned by each of them would be divided equally on their separate returns.

| Joint Return | Separate Returns | ||||||||||
| Walter's | Mary's | ||||||||||
| Income (Walter's): | |||||||||||
| Salary | $ 53,424 | ||||||||||







