Injured Spouse

Injured Spouse is different from Innocent Spouse

File Injured Spouse Claim and Allocation Form 8379An “Injured Spouse” should not be confused with an “Innocent Spouse.” A taxpayer who has filed a joint return with their spouse where part or all of their share of a refund was applied against their spouse’s past debts that the IRS acts as a collection agency for — such as…

  • Unpaid student loans
  • Unpaid spousal support payments
  • Unpaid child support payments
  • Unpaid state income taxes
  • Unpaid or past due federal taxes

…meets the base-line qualifications to file an “injured spouse” claim with the IRS and request the refund of the their share of the over-payment be refunded to the spouse who did not owe the debt(s) of the other spouse.

Requirements for taxpayers to make an injured spouse claim:

  • You have filed a joint tax return;
  • You and your spouse have reported wage or interest income;
  • You have reported and/or made tax payments
    • (federal income tax, estimated tax payments, claimed earned income credit, or other refundable credit);
  • You are due a refund that can be or has been applied against spouse’s past-due debts;
  • You are not required to pay the past due debt(s) – only your spouse is responsible;
  • You must fill out and submit IRS Form 8379 to attest to your “injured” status.

File Injured Spouse Claim using IRS Form 8379

If the IRS has applied your over-payment portion (your part of the tax refund) against your spouse’s past-due liabilities you need to fill out and submit IRS Form 8379 (Injured Spouse Claim and Allocation). IRS Form 8379 requests identifying information for you and your spouse, and specific facts necessary to determine how much of the tax, and any potential refund amount is allocated to each spouse. The IRS will make the calculation that determines the refund allocation between you and your spouse.

How and when should I file?

If possible — with your joint return – If you are concerned about a return not yet filed, and you desire to pro-actively head-off the IRS from using your portion of your refund (over-payment) for retirement of debts that were created and owed by your spouse, you should attach the “Injured Spouse” Form 8379 to your joint tax return when filing. Attach the Form 8379 to your joint tax return in the order of the attachment sequence number and TYPE or HAND PRINT “Injured Spouse” in the upper left corner of the return.

For those — who have already filed – If you meet the requirements of an injured spouse for a return that has already been filed and you are worried that the IRS may use your portion of a refund (over-payment) for your spouse’s past and separate debts, you should file IRS Form 8379 with the IRS Service Center by mailing or electronically-filing Form 8379 by itself to the same IRS Service Center where you lived when you filed your joint return. It is good practice to include copies of all Form W-2, Form W-2G, and any Form 1099-R showing income tax withheld for both spouses.

Innocent Spouse and Injured Spouse Links:

  • Publication 555, Community Property (PDF)
  • Instructions for Form 8379, Injured Spouse Allocation (PDF)
  • Form 8857, Request for Innocent Spouse Relief (PDF)
  • Instructions for Form 8857, Request for Innocent Spouse Relief (PDF)
  • Publication 971, Innocent Spouse Relief (PDF)

Get some help —Make that call!

San Diego Tax Resolution Lawyer Paul Staley provides a no-obligation, confidential consultation and has appointments available for evenings and weekends. We accept all major credit cards and can make other payment arrangements so that we can help you get your tax problems straightened out without adding additional layers of financial burden on you and your family. To speak to Paul now, or to schedule a confidential free consultation with one of our Tax Resolution Lawyers, call (619) 235-9645.