November 26, 2021

Using Spousal Injury To Your Tax Advantage

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When a joint return is filed and only one spouse owes a past-due amount, the other spouse can be considered an injured spouse. An injured spouse claim is different from an innocent spouse claim, since it uses Form 8379 to request an allocation of the tax overpayment attributed to each spouse, whereas an innocent spouse claim uses Form 8857 to request relief from joint liability for items of the other spouse (or former spouse) that were reported incorrectly on the joint return.

Typical debts that could belong to just one spouse are: federal debts, state income tax debts, state unemployment compensation debt, federal nontax debt such as a student loan, or child or spousal support payments. When one spouse’s refund is used to pay the other spouse’s debts, an offset occurs and the injured spouse should get a Notice of Offset from the IRS or the department of Treasury’s Bureau of the Fiscal Service. Injured spouses may file Form 8379 to receive their share of the refund shown on the joint return. To qualify for injured spouse relief, the claimant must:

  • Not be legally obligated to pay the past-due amount, and
  • Have made and reported tax payments (such as federal income tax withheld from wages or estimated tax payments), or claimed a refundable tax credit.

Both conditions must be met, unless the injured spouse lived in a community property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) at any time during the tax year. In community property states, the injured spouse must meet only the first condition. If the taxpayer meets these requirements, Form 8379 can be e-filed with the joint return before or after the offset occurs.

According to the IRS Publication 504 (2016), “If you haven’t filed your joint return and you know that your joint refund will be offset, file Form 8379 with your return. You should receive your refund within 14 weeks from the date the paper return is filed or within 11 weeks from the date the return is filed electronically. If you filed your joint return and your joint refund was offset, file Form 8379 by itself. When filed after offset, it can take up to 8 weeks to receive your refund. Don’t attach the previously filed tax return, but do include copies of all Forms W-2, Wage and Tax Statement, and W-2G, Certain Gambling Winnings, for both spouses and any Forms 1099 that show income tax withheld.” Also, a separate Form 8379 must be filed for each tax year to be considered.

A taxpayer 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 the taxpayer paid the tax that was later offset, whichever is later. Certain circumstances under I.R.C § 6511 may extend this period.

Ultimately, when asking if a taxpayer should pursue injured spouse relief, it is always wise to consult an experienced tax attorney who can easily navigate the intricacies of the IRS system, and help the taxpayer obtain the relief sought.  If you are unsure what to do in your legal situation, or are looking for legal representation, contact a Broward County Bankruptcy Lawyer today for a free consultation.

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