If a legally enforceable debt is reported to the Treasury Offset Program, the IRS intercepts the tax refund to pay the debt or obligation. For married couples that file joint returns, a debt reported under either Social Security number triggers an offset. If all or part of your portion of the refund was offset or expected to be offset for a debt your spouse owes, you can file an injured spouse claim to recover your share. You’ll receive a letter from the IRS updating you on the status of your claim. However, you can check your refund status yourself online or over the phone.
Was your tax refund withheld to pay your spouse’s debt?
DOES THIS SOUND FAMILIAR?
- Did you file a joint federal income tax return with your spouse?
- Did you expect a tax refund?
- Did you get a notice saying that your refund will be withheld, or has it already been withheld?
- Was the refund withheld to pay your spouse’s past-due debt for income tax, child support, or other federal debt?
If you answered “yes” to all of these questions, you may be eligible to file an injured spouse claim.
What is an ‘Injured Spouse’ Claim?
An injured spouse claim can help you get back your part of a tax refund from a joint tax return. It applies where the IRS has intercepted the refund to offset a debt owed by your spouse but not by you. The types of debt most commonly encountered are:
- a debt for taxes owed by your spouse (but not by you!),
- a debt for federal student loans,
- a debt for child support owed to a state.
An injured spouse claim will not help you get relief from jointly-owned tax debt. A jointly-owed debt is one that both partners are responsible for repaying. For example, any tax due on a tax return filed as “married filing jointly” is a jointly owed debt and both spouses are responsible for paying it. If in a later year, the couple’s refund is intercepted to pay the debt, neither spouse is an injured spouse.
However, you might have an injured spouse claim if your spouse:
- had student loans from before your marriage or
- fell behind in making child support payments for children from another relationship, or
- owed federal income tax from a year in which you filed separately
Note: If you feel as though you should not be responsible for your spouse’s tax debt after signing a joint return, you may have an “innocent spouse” claim, which is different than an “injured spouse” claim. You can find out more about innocent spouse cases by visiting irs.gov.
How do I qualify for an Injured Spouse Claim?
To qualify for an injured spouse claim, you must meet all three following conditions:
- You are not required to pay the past-due amount. This means that the debt is one which your spouse incurred before you got married or that the debt is one for which only your spouse is liable.
Examples include past-due child support, defaulted student loans, foreclosures on federal loans, unpaid state income tax, and any federal debt. - You reported income on the joint tax return. Some or all of the income on the joint return whose refund was withheld must be your own income from a job, self-employment, or investments. If your income for the tax year in question is $0.00, then your “share” of any refund is also $0.00. Remember: For this purpose, food stamps, TANF, and child support are not income. Neither are SSI, SSDI, GA, or social security retirement benefits.
- You made and reported payments on the joint return. Payments include federal income tax withheld from your wages, estimated tax payments, and refundable tax credits, such as the earned income tax credit or additional child tax credit.
How does the IRS determine my share of the refund amount?
In general, your share of a refund consists of the payments you made plus a pro-rated portion of any refundable credits. If you had federal income tax withheld from your paycheck (or if you made estimated tax payments on your self-employment income), the portion of the joint refund represented by those payments will be included in your share. Any additional child tax credits will also be included in your share. Any earned income tax credit will be apportioned between you and your spouse based on each person’s contribution to the joint adjusted gross income.
How do I request an Injured Spouse Claim?
Make a claim by filing IRS Form 8379.
- If you have not yet filed your joint tax return, complete your return and attach Form 8379 when you file it. Write “Injured Spouse” in the upper left corner of the first page of the return.
- If you have already filed the joint return, complete Form 8379 and mail it to the IRS Center at which you filed your tax return. (If you lived in Maine when you filed the joint tax return, mail it to the Andover, MA service center.)
- Attach to Form 8379 copies of all W-2 and 1099 forms received by you or your spouse.
- Get Form 8379 online
When should I file an Injured Spouse Claim?
If an agency notifies either you or your spouse that your tax refund will be withheld to pay your spouse’s debt, you may file the injured spouse claim with your joint tax return. Complete Form 8379 and attach it to your next tax return. The inclusion of Form 8379 on a tax return will not prevent the electronic filing of that return.
If you received no notice in advance of the interception of the refund, then you may file Form 8379 as soon as you know the refund has been intercepted.
What if I don’t agree with the amount of my Injured Spouse Claim?
You may contact the IRS to request a copy of the Injured Spouse Claim Worksheet.
How long does it take to get a refund if you file an Injured Spouse Claim?
If you file a Form 8379, Injured Spouse Allocation, with a joint return, the processing time is 14 weeks if it’s a paper return and 11 weeks if filed electronically. If you file Form 8379 separately after a joint return, the processing time is 8 weeks.
