Tax Controversy & Resolution: Injured Spouse Relief

Injured Spouse Relief 

You may be an injured spouse if you file a joint tax return and all or part of your portion of the overpayment was, or is expected to be, applied (offset) to your spouse's legally enforceable past-due federal tax, state income tax, state unemployment compensation debts, child or spousal support, or a federal nontax debt, such as a student loan. If you are an injured spouse, you may be entitled to receive a refund for your share of the overpayment.

A Notice of Offset for federal tax debts is issued by the IRS. A Notice of Offset for past-due state income tax, state unemployment compensation debt, child or spousal support, or federal non-tax debts (e.g. student loan) is issued by the U.S. Treasury Department's Bureau of the Fiscal Service.

​Do not file the Form 8379 (Injured Spouse Allocation) if you are claiming Innocent Spouse Relief. Instead, file Form 8857 (Request for Innocent Spouse Relief). Generally, both spouses are responsible for paying the full amount of tax, interest, and penalties due on your joint return. However, if you qualify for Innocent Spouse Relief, you may be relieved of part or all of the joint liability.

You may qualify for relief from the joint tax liability if any of the following apply.

  • There is an understatement of tax because your spouse omitted income or claimed false deductions or credits, and you didn't know or have reason to know of the understatement.

  • There is an understatement of tax and you are divorced, separated, or no longer living with your spouse.

  • Given all the facts and circumstances, it wouldn't be fair to hold you liable for the tax. See Pub. 971 for more details.

You must file Form 8379 within 3 years from the due date of the original return (including extensions) or within 2 years from the date that you paid the tax that was later offset, whichever is later. Certain circumstances described in IRC 6511 may extend this period.

Form 8379 Filing Procedures with your Joint Tax Return (or amended 1040X return):

  • File Form 8379 with Amended Form 1040X Return

    • This procedure should generally be followed only when you are amending your original return to claim a joint refund.

  • File Form 8379 with your Joint Return

    • Attach it to your return in the order of the attachment sequence number (located in the upper right corner of the tax form). Enter “Injured Spouse” in the upper left corner of page 1 of the joint return. 

    • Generally, if you file Form 8379 with a joint return on paper, the time needed to process is approximately 14 weeks (11 weeks if filed electronically).

  • File Form 8379 separately

    • Attach a copy of all Forms W-2 and W-2G for both spouses, and any Forms 1099 showing federal income tax withholding, to Form 8379. The processing of Form 8379 may be delayed if these forms are not attached, if the form is incomplete when filed, or if you attach a copy of your previously filed joint tax return.

    • If you file Form 8379 by itself after a joint return has been processed, the time needed to process is about 8 weeks.

For more information, see Form 8379, Injured Spouse Claim and Allocation.

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