Injured Spouse Relief
If you file a joint return with your spouse, and all or part of your refund is applied against your spouses’ past-due income tax, child or spousal support, or student loan, you may be entitled to injured spouse relief, and you may want to consider filing an Injured Spouse Claim for your portion of the refund which you are entitled to receive.
For the IRS to consider an injured spouse claim, you must have paid tax through wage withholdings, or made estimated tax payments, or are entitled to a refundable tax credit such as the earned income credit, or additional child tax credit on a joint return, and you must not be legally obligated to pay the past-due liabilities. If you live in a community property state, special rules may apply, so consult with a tax representation professional.
If you filed a joint return and you’re not responsible for the debt, but you are entitled to a portion of the refund, you may request your portion of the refund by filing Form 8379, Injured Spouse Allocation, which will allow the IRS to determine the amount of tax refund or liability allocated to your wages only. If you have not yet filed your 2010 tax return, you may file form 8379 along with your original tax return, or your may file it by itself once you are notified by the IRS of the refund payment applied to other liabilities.
Form 8379 can be filed electronically, but if you file a paper return, you can include Form 8379 with your return and write “INJURED SPOUSE” at the top left corner of the Form 1040, 1040A, or 1040EZ. This way the IRS will process your allocation request before an offset occurs if you foresee this happening. If you are filing Form 8379 by itself, it must show both spouses’ social security numbers in the same order as they appeared on your income tax return. You, the “injured” spouse, must sign the form.
If you are an innocent party to the tax liability on a jointly filed tax return, and do not believe that you are liable for the taxes incurred, you may file a Form 8857, Request for Innocent Spouse Relief. This relief from a joint liability applies only in certain limited circumstances, and a consultation with a knowledgeable tax representation professional is recommended.
As always, consult with a tax professional for ALL of your options prior to the filing of any tax forms.
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