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Updated January 14, 2022 Reviewed by Reviewed by Lea D. UraduLea Uradu, J.D. is a Maryland State Registered Tax Preparer, State Certified Notary Public, Certified VITA Tax Preparer, IRS Annual Filing Season Program Participant, and Tax Writer.
Part of the Series Federal Tax Forms1099 Forms INT–OID
1099 Forms PATR–SA
The "injured" spouse on a jointly filed tax return can file Form 8379 to regain their share of a joint refund that was seized to pay a past-due obligation of the other spouse. These obligations might include past-due federal tax, state tax, child support, or federal non-tax debt (such as a student loan). The term "injured" refers to the negatively impacted spouse, who does not owe the debt.
Typically, spouses are jointly responsible for a tax obligation so an injured spouse should file Form 8379 when they become aware that all or part of a share of a refund was, or is expected to be, applied against their spouse's legally enforceable past-due obligations.
If a spouse has fallen behind on child support payments, alimony, federal or state taxes, federal non-tax debt such as student loans, or certain unemployment compensation debt, then the Department of Treasury is authorized to take a taxpayer's refund and apply it toward the past-due debt. By filling out Form 8379, the injured spouse is requesting that the Internal Revenue Service (IRS) release their share of a joint tax refund.
To be eligible to file Form 8370 an injured spouse must have reported income included in the joint return in which a refund was garnished.
Form 8379 can be filed with a joint tax return, amended joint tax return (Form 1040-X), or it can be filed afterward by itself. An injured spouse form is only filed with Form 1040-X: Amended U.S. Individual Income Tax Return if a spouse is amending an original return to claim a joint refund.
An injured spouse form must be filed for each year the taxpayer wants their portion of any offset refunded. If a couple files their return knowing any refund might be seized, the injured spouse can file the form with the joint tax return or file separately.
Once you file a Form 8379, the IRS will review it to determine whether you are eligible for injured spouse relief and, if so, how much. It takes the IRS about 14 weeks to process an injured spouse form if you file a paper version with a joint return and 11 weeks if you file it electronically.
All pages of Form 8379 are available on the IRS website.
If you live in a community property state different rules may apply. In general, these states take the view that debts and assets acquired during a marriage are jointly owned, though there are exceptions. The rules vary in each state. The IRS uses each state's rules to determine the amount, if any, refundable to the injured spouse. Community property states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
Injured spouse relief is not the same as innocent spouse relief. This is a separate form that can be filed if one spouse has been made responsible for back taxes, interest, or penalties from improperly reported tax filings.
"Injured" spouse relief should not be confused with "innocent" spouse relief. A person files for "innocent" spouse relief when they have been made responsible for back taxes, interest, and penalties resulting from improperly reported taxes on a joint return. If the "innocent" spouse had no knowledge of the improper items leading to the problematic filing, Form 8857: Request for Innocent Spouse Relief can be submitted to claim relief. Several conditions must be met:
Finally, the IRS must determine it would be unfair to hold the spouse responsible.
The "injured spouse" on Form 8379 refers to a spouse who has been affected by the application of a joint tax refund to offset their spouse's debts. Because they have been financially harmed ("injured") by this use of the refund, that spouse is able to reclaim their share of the refund from the IRS.
It can take up to 14 weeks for the IRS to process an injured spouse allocation form, although processing is faster if the form is submitted electronically. If Form 8379 is filed separately from a joint tax return, it will take around 8 weeks.
In most cases, an injured spouse can file Form 8379 to claim their share of a tax refund before it is used to offset their spouse's debts. However, rules are different in community property states, where the tax refund may be considered shared marital property. In those cases, the IRS will divide the return according to the state community property law.
Generally speaking, Form 8379 should be filed with the IRS Service Center for the area where you live. However, if you have already filed your tax return for the year in question, you should send Form 8379 to the same Service Center you filed your tax return, even if you now live somewhere else.
Yes, and the IRS will process your injured spouse allocation faster if it is sent online. Electronic submissions take about eleven weeks to process, compared to fourteen weeks for paper filings.
If an injured spouse files Form 8379 along with their joint tax return, it will take between 11 and 14 weeks to receive their share of the tax return. Of course, this is contingent upon the IRS determination that the injured spouse is qualified for a share of the return.
If an injured spouse files Form 8379 and does not hear back, they can call the Bureau of Financial Services' TOP Center at 800-304-3107.
Yes, the IRS may determine that someone filing Form 8379 is ineligible for an injured spouse allocation, or that they are not entitled to as much as they believe. When the IRS receives a claim, they will calculate the injured spouse's share of the tax return, based on state laws and the circumstances surrounding each case.
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Description Part of the Series Federal Tax Forms1099 Forms INT–OID
1099 Forms PATR–SA
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