If my spouse owes back taxes from before our marriage, will the IRS take my tax refund every year?

No. The IRS provides a simple procedure you can follow to make sure you receive your portion of the tax refund, even if your spouse owes back taxes. This IRS program is referred to as Injured Spouse Relief. In order to take advantage of this program, you must complete and file IRS Form 8379, Injured Spouse Allocation, at the time you file your joint form 1040 tax return. The IRS will use the Injured Spouse Form to determine the portion of the refund that should be allocated to you. The IRS may then refund the appropriate funds to you and apply the remaining refund to your spouse’s back taxes.

According to the IRS, to qualify for Injured Spouse Relief, you must meet the following conditions:

1.You must not be legally obligated to pay the back taxes;

2.You must report income such as wages, taxable interest, etc., on the joint return; and,

3.You must have made and reported payments, such as federal income tax withheld from your wages or estimated tax payments, or you claimed the earned income credit or other refundable credit, on the joint return.

If you do not complete the Injured Spouse Allocation Form when you file your joint tax return, the IRS will most likely keep the entire refund to pay down your spouse’s back taxes. Some people also try to solve this problem by filing as Married, Filing Separate. If you choose the solution, you will receive your refund. However, you may give up some important tax advantages. You should probably consult with a qualified tax preparer before making the decision to file separate returns.