Estate Planning and Tax Lawyer Blog

If you file a joint federal income tax return and a portion or all of your refund is applied against your spouses’ past-due federal tax, state income tax, child or spousal support, or federal nontax debt, you may be entitled to injured spouse relief. To be considered an injured spouse by the IRS, you must have made and reported tax payments or claimed a refund credit and not be legally obligated to pay the past-due amount. Special rule apply to those who live in a community property state. See IRS Publication 555, Community Property for more information about community property laws. You may request your portion of the refund by filing Form 8379, Injured Spouse Allocation, if you are filed a joint return, are not responsible for the debt, and are entitled to a portion of the refund. You can file Form 8379 along with your original tax return or by itself after you are notified of an offset. When filing a Form 8379 with your tax return, write “INJURED SPOUSE” at the top left corner of your Form 1040, 1040A, or 1040EZ. If filing Form 8379 by itself, it must include both spouses’ social security numbers in the same order as they were listed on your income tax return. If you are claiming innocent spouse relief, do not use Form 8379 by itself; instead, file Form 8857, Request for Innocent Spouse Relief. This relief only applies in certain circumstance. The IRS Publication 971, Innocent Spouse Relief, explains the qualifications and how to request the relief.