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Anne, Master Tax Preparer
Category: Tax
Satisfied Customers: 2439
Experience:  Enrolled Agent with 25 Years Experience specializing Individual and Small Businesses
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I did a jointly tax return in 2008 and got refund..but this

Customer Question

I did a jointly tax return in 2008 and got refund..but this year when i wanted to do again a joint tax return with my husband who is in jail since 2008 got refused and they hve told me they made a mistake in 2008 and actually owe them 5000$!
I should get a tax return of 2-3000$ husband maybe ows them ..i want my tax return...i dont owe them...Is it too late to change it to seperatly tax return..i dont want it joint tahat i can get my refund!!!
Submitted: 7 years ago.
Category: Tax
Expert:  Anne replied 7 years ago.
Hi Jacustomer-eiottOed

Thank you for using justanswer. Yes, its too late to try to file separately for tax year 2008. However, that doesn't mean that you can't get your refund. If your husband owes the IRS or another government agency (such as Friend of the Court for back child support for example) the IRS can not just apply your portion of the refund to his obligations without sending you a letter along with Form 8379 (Rev. January 2009) Injured Spouse Allocation. Receiving this letter along with this form in the mail is the only way you will know for sure if your husband actually does owe the IRS or any other government agency that the IRS would work with in collecting their debt. Even the IRS recoginizes that you should not be held responsibile for your husband's debts to them and that's why this form was created, to ensure that you receive your portion of the refund.

NOTE: In order for the IRS to send you a letter and offer you the chance to receive the portion of the refund that is yours, your husband must have owed the IRS before you married, or this must be a debt that you would not otherwise not be obligated to pay, such as back child support. Regardless, you won't know for sure until the IRS either sends the refund, sends you the letter with the "Injured Spouse" form attached, or sends you a lettter stating that they have applied the $2-3000 to your debt.

My hunch here is that you have dependent children, and you were not aware that the IRS has something called an "Earned Income Credit" (which could easily account for the additional $2-3000) Please see below:

Earned Income Tax Credit (EITC) Overview

I bring this up because depending on how long your husband will be in jail, you may have another filing status open to you while your husband is incarcerated. As long as you and your husband do not live together even 1 night during the last 6 months of any calendar year, and you have a "qualifying relative" that you pay more than half the cost of maintaining a home for, (and children are definitely a "qualifying relative" for this) then you may want to file as Head of Household. Using this filing status will bypass the need to file the "Injured Spouse" form if your husband does indeed owe the IRS or other government agency.

In the meantime, if there is a place you need to sign on the letter you received in order for you to get the additional money, sign it, and send it back ASAP. Remember there are only 3 possible outcomes for the additional refund:

1-you receive a check for the full amount

2-you receive a letter stating that you husband does owe a debt, but that you may claim your portion of the refund by sending back the "Injured Spouse Form" (that they will include by the way), and if you were the only person who reported income on the tax return since your husband was incarcerated, and if the children are your biological children and my hunch is on target that this additional money is from the "Earned Income Credit", then filling out that "Injured Spouse Form" may very well result in your receiving the entire $ amount anyway.

3- This is a joint debt from a previous tax year, and the IRS will apply the $2-3000 towards that debt.

I hope this helps you.