Even the IRS acknowledges that people have lives before they get married, and some spouses keep their financial affairs separate. The government has a process in place to protect those whose tax refunds from jointly-filed returns are seized for an "offset" to pay a delinquent debt owed by their spouses, not by them. You can make an injured spouse claim to the IRS if this happens to you.
Debts That Can Cause Offsets
Only a government entity can claim a refund to offset a debt owed to them. The federal government or a state government can do it for taxes owed, and state governments can also request an offset to pay past-due child support obligations. You're vulnerable if your spouse has delinquent student loans. State unemployment compensation debts can create an offset as well.
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What Is an Injured Spouse Claim?
You might have an injured spouse claim if you can prove that you don't personally owe the debt for which your joint refund was intercepted. You can't make a claim if you have any legal liability for the debt in question. Maybe the student loans predate your marriage, or the child support is for a child from your spouse's previous relationship. A tax debt would have to originate from a separately filed return.
You don't have an injured spouse claim if you didn't personally contribute any taxable income on the joint return, and you must have had taxes withheld from your paychecks or made estimated tax payments over the course of the year in question if you're self-employed. Claiming refundable tax credits also counts toward the taxes-paid-in rule.
How Much Are You Owed?
You won't get the full amount of the refund that was due before the offset occurred. The IRS will only pay you a portion equal to the percentage of income you contributed to that tax return and the taxes you paid in.
You can reach out to the IRS for a copy of the Injured Spouse Claim Worksheet they prepared to arrive at the number if you disagree as to how much of the intercepted refund you should receive. And it's possible that your claim could be denied if you live in one of the community property states where spouses are equally responsible for some debts that are incurred by just one of them.
How to Make a Claim
You and your spouse should receive a notice from the agency/creditor making the offset before it occurs, and the Bureau of Fiscal Service should also send you a notice that the offset is about to occur. The IRS will only send you a notice if the debt in question is a previous year's federal tax obligation.
Complete IRS Form 8379, the "Injured Spouse Allocation," explaining why you think you qualify for an injured spouse claim and submit it with your Form 1040 tax return. Write "Injured Spouse" in the top left corner of the first page of the return as an alert to the IRS when it's processed. You're not out of luck if you don't receive a notice before filing your return. You can submit Form 8379 to the IRS Service Center where you sent your tax return.
You can get a copy of the form on the IRS website at www.IRS.gov, and you can still e-file your tax return if you want to include Form 8379 at the time you file it. You should include copies of all W-2 forms and 1099 forms for both spouses.
Where’s Your Refund?
Unfortunately, you're probably going to have to wait some considerable time before you find out if your claim has been approved, particularly in 2020 during the coronavirus pandemic. The IRS indicates that it will take about 14 weeks to process your claim if you file Form 8379 on paper with your tax return. You can cut three weeks off this timeframe if you e-file, however. It will take about eight weeks if you file for an injured spouse allocation after you've filed your return.
You should wait out at least these timeframes before contacting the IRS to check on the status of your claim. Call the IRS at 800-829-1040. Calls are normally taken from 7 a.m. to 7 p.m. local time.
You can also reach out to a Taxpayer Assistance Service (TAS) location if you need additional help. The IRS has a locator tool on its website. You can then call 844-545-5640 to make an appointment there at the nearest office.
The IRS warns that telephone service is extremely limited during the COVID-19 pandemic, and TAS offices are temporarily closed to the public for in-person assistance. You might be able to get through by phone, however.
- Pine Tree Legal Assistance: Income Tax Refunds – Injured Spouse Claims
- IRS: Instructions for Form 8379
- Jackson Hewitt: Injured Spouse – How to Calculate Allocation and File a Claim
- H&R Block: Injured Spouse
- IRS: Let Us Help You
- IRS: Topic No. 203 Reduced Refund
- IRS: Form 8379 Injured Spouse Allocation