What Is IRS Form 8379: Injured Spouse Allocation?

The "injured" spouse on a jointly-filed tax return can file Form 8379 to regain their share of a joint refund that was seized to pay a past-due obligation of the other spouse. These obligations might include past-due federal tax, state tax, child support, or federal non-tax debt (such as a student loan). The term "injured" refers to the negatively impacted spouse, who does not owe the debt.

Key Takeaways

  • If spouses file a joint tax return and a refund is applied to one spouse's past-due debts, the “injured” spouse can file Form 8379 to get their share of the refund.
  • An injured spouse form can be filed with a joint tax return, amended joint tax return, or afterward by itself.
  • If you live in a community property state, the rules may differ. The IRS uses laws in these states to determine if—and how much—an injured spouse is entitled to.

Who Can File Form 8379: Injured Spouse Allocation?

Typically, spouses are jointly responsible for a tax obligation so an injured spouse should file Form 8379 when they become aware that all or part of a share of a refund was, or is expected to be, applied against their spouse's legally enforceable past-due obligations.

If a spouse has fallen behind on child support payments, alimony, federal or state taxes, federal non-tax debt such as student loans, or certain unemployment compensation debt, then the Department of Treasury is authorized to take a taxpayer's refund and apply it toward the past-due debt. By filling out Form 8379, the injured spouse is requesting that the Internal Revenue Service (IRS) release their share of a joint tax refund.

To be eligible to file Form 8370 an "injured" spouse must have reported income included in the joint return in which a refund was garnshed.

How to File Form 8379: Injured Spouse Allocation

Form 8379 can be filed with a joint tax return, amended joint tax return (Form 1040-X), or it can be filed afterward by itself. An injured spouse form is only filed with Form 1040-X: Amended U.S. Individual Income Tax Return if a spouse is amending an original return to claim a joint refund.

An injured spouse form must be filed for each year the taxpayer wants their portion of any offset refunded. If a couple files their return knowing any refund might be seized, the injured spouse can file the form with the joint tax return or file separately.

Once you file a 8379 form, the IRS will review it to determine whether you are eligible for injured spouse relief and, if so, how much. It takes the IRS about 14 weeks to process an injured spouse form if you file a paper version with a joint return and 11 weeks if you file it electronically.

Form 8379

All pages of Form 8379 are available on the IRS website. 

Special Considerations for Form 8379: Injured Spouse Allocation

If you live in a community property state different rules may apply. In general, these states take the view that debts and assets acquired during a marriage are jointly owned, though there are exceptions. The rules vary in each state. The IRS uses each state's rules to determine the amount, if any, refundable to the injured spouse. Community property states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

Other Relevant Forms

"Injured" spouse relief should not be confused with "innocent" spouse relief. A person files for "innocent" spouse relief when he or she has been made responsible for back taxes, interest, and penalties resulting from improperly reported taxes on a joint return. If the "innocent" spouse had no knowledge of the improper items leading to the problematic filing, Form 8857: Request for Innocent Spouse Relief can be submitted to claim relief. Several conditions must be met:

  • The understated tax was reported on a joint return.
  • The understated tax stems from under-reported income or improperly applied deductions, credits, or cost basis.
  • The spouse can demonstrate he or she signed the joint return without knowing the understated tax existed.

Finally, the IRS must determine it would be unfair to hold the spouse responsible.