If your spouse has tax debt from before your marriage, the IRS may still take the whole refund to pay the taxes if you file a joint return for married couples. However, you're not responsible for your spouse's old tax debt, so you can get your part of any refund due on the joint return by filing an injured spouse form with your return. Unlike innocent spouse relief, which is for spouses who are not responsible for liabilities on a current return; injured spouse relief protects someone who will lose a refund because of taxes owed by a spouse.
Complete your joint tax return with your spouse as normal. Write "Injured Spouse" on the top upper-right corner of the first page of your return.
Get Form 8379, Injured Spouse Allocation, and its instructions. You can get the form and instructions on the IRS website or by calling the IRS at 800-829-3676.
Complete Part I of Form 8379. You'll need to answer a series of questions about the debt and your level of responsibility for it.
Complete Part II of Form 8379. You must give your spouse's full name and Social Security number. You also have to enter your name and Social Security number and check the corresponding line box that indicates you're the injured spouse.
Complete Part III of Form 8379. You'll need the figures from your tax return and other attachments, such as your W-2 forms, to calculate the individual shares of the tax items, such as credits, shown on your joint return. Follow the Form 8379 instructions to calculate your shares and your spouse's shares for all items that apply to you. You can prepare separate returns for you and your spouse to get many of the figures.
Attach Form 8379 to your joint return. Don't complete Part IV of the form. Part IV is only for those who are mailing in the form separate from a tax return. Attach the form to the back of your return. Use the order set by the sequence numbers found in the upper-right corner of the forms if you have other forms to attach.
Mail the return, with all forms attached and other necessary documents, to the IRS. Your joint return instructions show the correct mailing address for your state.
- You may choose to have your part of the refund mailed to you at a different address on Form 8379.
- If you've already filed your return, complete Part IV of Form 8379 and mail it in separately.
- You can file using a status of married, filing separately, to protect your refund. You file your separate return normally and don't need to use Form 8379. However, if you do, you will lose access to certain credits and deductions, such as the child care credit and the earned income credit.
- You are still responsible for any tax debt you and your spouse incurred together.
Anna Assad began writing professionally in 1999 and has published several legal articles for various websites. She has an extensive real estate and criminal legal background. She also tutored in English for nearly eight years, attended Buffalo State College for paralegal studies and accounting, and minored in English literature, receiving a Bachelor of Arts.