Claiming Injured Spouse Relief When Filing your Tax Return

Married taxpayers who are injured spouses could still receive a refund when they jointly file their tax return even when the refund or part of the refund was applied or will be applied to pay a past due obligation of one spouse. 

You are an injured spouse if you filed a joint tax return and all or part of your portion of the overpayment was, or is expected to be, applied (offset) to your spouse’s legally enforceable past-due federal tax, state income tax, state unemployment compensation debts, child support, or a federal nontax debt, such as a student loan.

As an injured spouse you file Form 8379 (Injured Spouse Allocation) when you know or when you become aware that all or part of your share of an overpayment was, or is expected to be, applied (offset) against your spouse’s legally enforceable past-due obligations. The injured spouse must file Form 8379 for each year he or she meets this condition and wants his or her portion of any offset refunded.

Example:

Don and Dona expect a refund of $8,700 when they jointly file their tax return. Don has $55,000 in non-paid child support and student loans that he accumulated prior to getting married. To prevent the entire refund from being applied against Don past-due obligation, Dona could file Form 8379 to protect her share of the refund.

Form 8379 must be filed within 3 years from the due date of the original return (including extensions) or within 2 years from the date that you paid the tax that was later offset, whichever is later. This period may be extended because of certain circumstances described in Code section 6511 (Limitations on credit and refund).

In general:

•  If you file Form 8379 with a joint return electronically, the time needed to process it is about 11 weeks.

•  If you file Form 8379 with a joint return on paper, the time needed is about 14 weeks.

• If you file Form 8379 by itself after a joint return has already been processed, the time needed is about 8 weeks.

 Do not file Form 8379 if you are claiming innocent spouse relief. Instead, file Form 8857.

Further reading: IRS sections 6402, 6511.

 Hiring a tax resolution expert is the best action a taxpayer could take in a tax matter before the IRS or a state tax authority. 

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