The IRS has the authority to seize a taxpayer’s income tax return if that individual owes certain debts. These debts can include unpaid federal or state taxes, overdue child support, or a federal non-tax debt (such as a student loan).
If you’re married and file your taxes jointly, the IRS may seize your return over a debt for which your spouse was responsible, but you were not. If that happens to you, then you’re referred to as the innocent spouse.
As experienced tax attorneys, we understand that the next steps can be challenging to navigate. You and your spouse are loving teammates, but these financial burdens can be difficult to bear. You shouldn’t both be punished, and the quicker you can find relief, the better.
Thankfully, you may be able to file Innocent Spouse Form 8379.
This tax form allows an innocent spouse to gain back their share of a joint refund if they weren’t responsible for the other spouse’s past-due obligation. Today, we’re sharing how this form works and how to fill it out.
What Is IRS Form 8379?
IRS Form 8379 is a tax form that individuals can file to reclaim a portion of a tax refund seized by the IRS to help pay an overdue debt. The IRS can take this action if any of the following forms of payment are overdue:
- Child support payments
- Alimony (spousal support)
- Federal or state taxes
- Delinquent federal debt (e.g. student loans)
- Some unemployment compensation debt (e.g. overpaid benefits that the recipient must return)
If the overdue debt is related to federal tax payments, the taxpayers will receive a Notice of Offset from the IRS. If it’s related to any other type of debt, they will receive a Notice of Offset from the U.S. Treasury Department’s Bureau of the Fiscal Service.
In some instances, only one spouse is responsible for this overdue debt. For example, only one parent may owe child support. Or, one spouse may be behind on student loan repayments, while the other has paid theirs off in full.
While that responsibility is theirs alone, the other spouse will suffer when the IRS seizes the shared refund to pay it back. When this is the case, the term “injured spouse” is used to refer to the spouse who was not responsible.
Most of the time, spouses share joint responsibility for any tax obligations they accrue. As soon as an injured spouse becomes aware that all or a portion of their refund will be applied against their spouse’s past-due tax obligations, they should fill out Form 8379.
This form essentially requests that the IRS relieve that spouse of the tax obligations related to the other spouse. If the IRS approves the request, they will release the requesting spouse’s share of the joint tax return.
To be eligible to file Form 8370, the injured spouse must have reported their own income on the joint tax return that they filed with their partner. This return must have resulted in a refund, from which the IRS seized all or a portion of the earnings to pay back the overdue debt.
How to File Form 8379
There are three ways to file Form 8379. The injured spouse can file it:
- Along with the joint tax return
- As an amended joint tax return (using Form 1040-X: Amended U.S. Individual Income Tax Return)
- Individually by itself
Note that you only need to complete and attach Form 1040-X if you’re amending your original return in an attempt to claim a joint refund.
If you file Form 8379 with your joint return, you can attach the form to the return following the order of the attachment sequence number. You’ll find this number in the upper righthand corner of your tax form.
If you choose to file it individually, you will need to attach a copy of the following forms (for both spouses):
- Form W-2
- Form W-2G
- Any Forms 1099 that show federal income tax withholding
When to File
If the tax offset affects an injured spouse for more than one tax year, then that spouse must file a new Form 8379 each year. This will apply to any year that they want their portion of the offset to be refunded. If you anticipate that the IRS might seize your joint refund for any reason, you can go ahead and attach this form to your joint tax return when you file it.
If you decide to wait and file later, it’s important to understand the timelines. You’re required to file Form 8379:
- Within three years of the original return’s due date, including any applicable extensions, or
- Within two years from the date you paid the tax that the IRS later offset (whichever comes later)
You may be able to extend these deadlines, but only if the government approves the request.
The IRS will take the time to review each Form 8379 that they receive. They will analyze the details to assess whether the filing party is eligible to receive innocent spouse relief, and how much relief they should get.
If you file the paper version of the form, you can expect to wait around 14 weeks for the IRS to process it. If you file electronically, the process is a little quicker and usually takes no more than 11 weeks. If you complete and file this form independently of any other tax documents, it should only take around eight weeks to process.
If you’ve submitted the form, waited, and still haven’t heard back, you can call the IRS or the Bureau of the Fiscal Service to check the status. To expedite the process, make sure that your form includes all of the necessary attachments and is error-free before you submit it. Your tax attorney can walk you through each part to make sure nothing is missing.
A Note on Community Property States
If you live in an area designated as a community property state, then you may not be eligible to file Form 8379. This is because most of these states dictate that any debts and assets that spouses acquire during their marriage should be shared, or jointly owned. Thus, even innocent spouses are responsible for helping to shoulder the debt burden of the other.
While this is usually the case, there are exceptions and rules can vary. If you live in any of the following states, reach out to your trusted tax attorney to learn more about how to proceed:
- New Mexico
The IRS will analyze your state’s rules to determine the refund amount if any, that you’re eligible to receive.
Where to File for Innocent Spouse Relief
Ideally, you should file Form 8379 at the IRS Service Center associated with your local region. Yet, if you’ve already filed your tax return for the year, you can send it to the same IRS Service Center where you filed your original tax return. You can do this even if you’ve moved and you now live in a different location.
How to Fill Out Form 8379: A Step-by-Step Guide
For tax years that begin in 2021 or later, make sure to use the November 2021 revision of Form 8379. Next, let’s take a look at how to fill out each section.
Part I: Should You File This Form?
The IRS uses Part I of Form 8379 to determine if you’re eligible to receive back your portion of the seized refund. Lines 1 through 9 are simple “yes” or “no” questions that cover the following:
- The tax year for which you are filing
- If you filed a joint tax return
- If the IRS applied your joint overpayment to a legally enforceable past-due debt
- Your legal obligation to pay the past-due amount
- If you live in a community property state
- If you made and reported payments (e.g. federal income tax withholding, estimated tax payments)
- If you had earned income
- If you claimed the earned income tax credit or additional child tax credit
- If you claimed a refundable tax credit
The answers you input for each line will determine the total number of lines you need to complete. For instance, if your marriage is recognized by a community property state law, then you can skip Lines 6 through 9. Sometimes, answering “no” will end the application altogether.
For example, if you’re not legally obligated to pay the past-due amount, you can stop. The IRS does not recognize you as an innocent spouse.
Part II: Information About the Joint Return
This section of Form 8379 is used to share information about you and your spouse’s joint tax return. On Line 10, enter each person’s name and social security number, exactly as it is shown on the original return. Check the box next to the innocent spouse.
If you wish to have the refund issued in both your and your spouse’s name, then check the box on Line 11.
Line 12 asks if you want your innocent spouse refund mailed to an address that’s different from the one on your joint return. If you check “yes” here, then enter the address. Note that if the address change is permanent, you will also need to attach Form 8822: Change of Address to Form 8379.
Part III: Allocation Between Spouses of Items on the Joint Return
The IRS will use Part III to determine the amount of tax owed and the overpayment due to each spouse. To do so, the allocation must be made as if each spouse filed an individual tax return, instead of a joint one.
This means that both you and your spouse must allocate the following:
- Income reported on Form W-2 (Line 13a)
- Other income (Line 13b)
- Adjustments to income (Line 14)
- Standard deduction or itemized deductions (Line 15)
- Nonrefundable credits (Line 16)
- Refundable credits except earned income credit (Line 17)
- Other taxes (Line 18)
- Federal income tax withheld (Line 19)
- Payments (Line 20)
Part III will include three columns beside each line. These are as follows:
- Column A: Amount shown on joint return
- Column B: Allocated to innocent spouse
- Column C: Allocated to the other spouse
Part IV: Signature
You only need to complete Part IV of Form 8379 if you’re filling it out separately and are not including it with your joint tax return. Here, you’ll print or type your name, add your signature, and enter the date. You’ll also include your phone number and PTIN, and designate whether you’re self-employed.
Avoid Mistakes When Filing Form 8379
If you choose to complete Form 8379 on your own, it’s important to guard against some of the most common mistakes that taxpayers make. Here are a few general guidelines to keep your form error-free.
- Don’t include a copy of your joint return if you file Form 8379 separately.
- Enclose all copies of Forms W-2 and W-2G for both spouses.
- Enclose all Forms 1099 that show income tax withheld.
- Make sure all items of income, expenses, credits, and deductions are allocated to the spouse who would have entered those items on their own tax return.
- If you file Form 8379 with your joint return (or amended one), enter “Innocent Spouse” in the upper lefthand corner of the first page.
- Make sure the debt you’re claiming relief from is actually subject to government offset (e.g. legally enforceable according to the above categories)
By partnering with a tax consultant, you can make sure your form is accurate and complete. This helps you avoid common missteps and can even help you receive your money quicker.
Learn More About Form 8379 for Innocent Spouse Relief
Financial discussions can be stressful between spouses, no matter how much love is there. We understand that taxes can be especially complex and trying, and we’re here to help.
If you believe that you qualify to complete Form 8379 as an innocent spouse, reach out to our team. We’ll help you understand more about how this process works and what you can expect moving forward. Contact Silver Tax Group today to discuss your tax-related questions and get started today.