Will filing Form 8379 - Injured Spouse - keep the IRS from taking half of my new husband's tax refund in WA state?

I have some federal tax debt which was my ex-husband's and mine from a few years ago. I got remarried this year and my husband and I plan on filing a joint return for the 2012 tax year. After reading some of the publications in debt regarding what part of the joint refund the IRS can take toward MY debt (not community debt), I think I've found out that the IRS can take up to 50% of our joint refund (regardless of how much of the overpayment is mine and how much is his) to apply toward MY debt. But if he files Form 8379, will that prevent the IRS from taking any part of HIS portion of the overpayment refund?

Marysville, WA -

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Attorney Answers (2)

E. Martin Davidoff

E. Martin Davidoff

Tax Lawyer - Dayton, NJ

File the 8379 with your joint return. The IRS will then take only your portion of the refund, based upon computations of income and tax payments. 50/50 is not going to be the issue.

The bottom line is that the form 8379 DOES provide relief. Note that a similar approach may be available for your state tax refunds.

Of course, the best view is to plan your withholding so that you have little or no refund and it becomes a nonissue.

Good luck.


Marty Davidoff, emd@taxattorneycpa.com, 732-274-1600. This answer is provided for general information only. You... more
Andrew J Wyman

Andrew J Wyman

Tax Lawyer - Bellevue, WA

Form 8379 is the correct form. If you complete and file such with your tax return, the IRS will only keep your portion of the refund. There is no state income tax in Washington, so that is not an issue. In the future, you and your husband should plan your withholding, so you have little to no refund - minimizing the effects of this issue. If you need help resolving the past liability, I am in your area. My number is (425) 451-9572. Best of luck.

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There are different types of debt, but all involve one person (the debtor) owing money to another (the creditor). Terms of repayment are governed by a contract.

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