Confused about 2007 taxes while having spouse under CR1

[carterlovej 0]

Based on my research (IRS website and various publications) a non-resident alien would only HAVE to file if they earned US source income. You can choose to file though, I believe.

In my case, I live and work outside of the US so my husband cannot claim me as a dependant, I have no US source income, therefore I am not filing.

you don't have to file, but you and your husband could file "married filing jointly". he would include your foreign income on line 7, then exclude the first $80,000 using the 2555. you aren't really a dependent, you're married filing jointly. it doesn't matter if you work in the US or not, the fact that you are married means that you can file as such. In our case all of my husbands income was excluded using the 2555, so we were taxed as if both of us live on my income alone. you can't claim some of the tax credits such as EIC when you exclude foreign income, but that may not matter.

Yes, but it is my understanding that you can only use the 2555 for citizens or permanent residents - not the non-resident limbo that a lot of us are in right now.

Not to say you can't still file "married filing jointly" - I'm just not sure the 2555 is an option if you haven't been approved for your CR/IR-1 visa yet.

I'm still waiting to hear from my CPA on all of this! It's so confusing.

[payxibka 10,045]

Yes, but it is my understanding that you can only use the 2555 for citizens or permanent residents - not the non-resident limbo that a lot of us are in right now.

Not to say you can't still file "married filing jointly" - I'm just not sure the 2555 is an option if you haven't been approved for your CR/IR-1 visa yet.

I'm still waiting to hear from my CPA on all of this! It's so confusing.

I believe there is a special exception. This exception allows for the non-resident alien spouse to "declare" that they wish to be treated as a resident alien for tax purposes. The rub is that the non-resident must include there world wide income as if it was US based income. In some instances it may be benneficial and in others it may not....

[Dogwood_Poet 16]

One thing I found out when I filed last year with my wife's W7. I could not cash the refund check until she got here! My bank said since she wasn't on my account, she had to be present to sign the check, and they wouldn't add her to my accounts until she was here in the US.

So I had to keep my refund check in the safe for six months until Kathlene got her visa!

(Yes, I did try direct deposit and the bank's computer kicked it out for the same reasons)

[jimandjosil 0]

Did u file married filing jointly or separate? I dont have any income at all so I cannot declare anything I am here in the Philippines and my petition is ongoing, but my husband wants to file his taxes as married filing separate. He went to H and R block for some advice and was asked to submit W7 form and copy of passport from me and my daughter (his stepchild) . They didn't mention for the refund to be withheld until after I get there and we don't want that to happen since we hope to use the refund to buy his tickets soon. Any comments? Thanks.

Is it possible that we get the refund right away if Married filing separate?

I have not worked since Jan. 2007, does that hold any ground or none at all?

[Goldtrom 0]

visa==application & application==visa in my speak. I was just using shorthand, if you wish to ###### about it that is your choice, but I see no point. I asked a question and didn't need to be corrected on the use of visa versus application... Now you have wasted both of our time, hope your happy!

[payxibka 10,045]

visa==application & application==visa in my speak. I was just using shorthand, if you wish to ###### about it that is your choice, but I see no point. I asked a question and didn't need to be corrected on the use of visa versus application... Now you have wasted both of our time, hope your happy!

Shorthand speak will many times get you the wrong information....

[carterlovej 0]

Yes, but it is my understanding that you can only use the 2555 for citizens or permanent residents - not the non-resident limbo that a lot of us are in right now.

Not to say you can't still file "married filing jointly" - I'm just not sure the 2555 is an option if you haven't been approved for your CR/IR-1 visa yet.

I'm still waiting to hear from my CPA on all of this! It's so confusing.

I believe there is a special exception. This exception allows for the non-resident alien spouse to "declare" that they wish to be treated as a resident alien for tax purposes. The rub is that the non-resident must include there world wide income as if it was US based income. In some instances it may be benneficial and in others it may not....

YES! OK, I do remember reading that. Thanks!

[thermophile 0]

Based on my research (IRS website and various publications) a non-resident alien would only HAVE to file if they earned US source income. You can choose to file though, I believe.

In my case, I live and work outside of the US so my husband cannot claim me as a dependant, I have no US source income, therefore I am not filing.

you don't have to file, but you and your husband could file "married filing jointly". he would include your foreign income on line 7, then exclude the first $80,000 using the 2555. you aren't really a dependent, you're married filing jointly. it doesn't matter if you work in the US or not, the fact that you are married means that you can file as such. In our case all of my husbands income was excluded using the 2555, so we were taxed as if both of us live on my income alone. you can't claim some of the tax credits such as EIC when you exclude foreign income, but that may not matter.

Yes, but it is my understanding that you can only use the 2555 for citizens or permanent residents - not the non-resident limbo that a lot of us are in right now.

Not to say you can't still file "married filing jointly" - I'm just not sure the 2555 is an option if you haven't been approved for your CR/IR-1 visa yet.

I'm still waiting to hear from my CPA on all of this! It's so confusing.

the 2555 is absolutely applicable if you are waiting for your visa or even if you are both in the other country and have no intention of immigrating to the US. your immigration status and your status with the IRS have basically no relation. As far as the IRS is concerned, you being married and declaring the non-citizen spouse "resident for tax purposes" is good enough. I've filed married filing jointly since we got married in 2003 even through my husband didn't get his visa till last fall.

I can't help with the ITIN issues, my husband already had a SSN from a previous J visa.

Of course if you already have an accountant, check what they say. But make sure that they know how to deal with foreign spouses, it's not that common of a situation.

[thermophile 0]

Did u file married filing jointly or separate? I dont have any income at all so I cannot declare anything I am here in the Philippines and my petition is ongoing, but my husband wants to file his taxes as married filing separate. He went to H and R block for some advice and was asked to submit W7 form and copy of passport from me and my daughter (his stepchild) . They didn't mention for the refund to be withheld until after I get there and we don't want that to happen since we hope to use the refund to buy his tickets soon. Any comments? Thanks.

Is it possible that we get the refund right away if Married filing separate?

I have not worked since Jan. 2007, does that hold any ground or none at all?

He should still try running the numbers married filing jointly just to see if he will get a larger refund that way. I never had any problem getting my refund, it may be bank specific. I've always done direct deposit. Remember that you can't e-file if you are using the 2555, so the processing of his return will probably take longer

[lucyrich 20]

See IRS Publication 519, the Tax Guide for Aliens for your detailed answers. Also, IRS Publication 501 has a lot of general information about when to use married versus single filing status, and dependents and exemptions and such.

If you're legally married as of the last day of the tax year, you CANNOT legally file as single. That much is very clear in publication 501. Your choices are generally married filing separately or married filing jointly. Under certain circumstances, if you're living apart from your spouse and you have a qualifying dependent living with you (your spouse won't qualify), you might be eligible to use the filing status "Head of Household", but check the detailed rules listed in publication 501.

The IRS probably doesn't know about your marriage, so filing as single might not be an issue for them. But even if the IRS doesn't catch or punish you for filing as single, be aware that you'll probably eventually have to show your tax returns to the USCIS, either for an affidavit of support, or for an I-751 for removal of conditions, or perhaps eventually for an N-400 citizenship application. When you sign a tax return with filing status of single, you're certifying under penalty of perjury that you are indeed not married. Now, how are you going to explain to the USCIS that they should believe you have a bona fide marriage, when you swore to the IRS that you were single?

As to whether to file jointly or separately, it depends. Read Publication 519. Most of you are describing situations where the alien spouse is a nonresident alien. Ordinarily, a nonresident alien is ineligible to file a joint return, but if the nonresident alien is married to a US Citizen, the two of them can elect to consider the nonresident alien as a resident for the entire year for tax purposes. The bonus is that this allows them to file jointly, and qualify for the lower rates and higher exemptions that a joint return gives them. The downside is that it requires the alien spouse to declare all worldwide income. Income earned outside the US may be shelterable under tax treaties, so you may not end up having to pay US tax on it, but you've still got to declare it.

One further note about a point that always seems to come up in these discussions: Your spouse is NEVER your dependent. If you file a joint return, the two of you can each put down your personal exemptions, for a total of two personal exemptions listed on the return. But that's not the same as a dependent in tax terminology. A dependent is only a "qualifying child" or a "qualifying relative", and a spouse never qualifies under either category. Again, see pub 501, where it says, and I quote directly, "Your spouse is never your dependent".

Publication 501 and 519 may be a bit hard to get through, but they're much easier than immigration guides, IMO.

[Imua 0]

Ugh - I think I am screwed then. I filed right away as single because I wanted to get my refund quickly. I am using it to finance my next trip to Nepal. Since as I understand it Govi would have to send his passport to me for me to get a notarized copy to get a ITIN and we don't want to do something risky like that I just filed as single. I believe I can file an amended return before I need to fill out the Affidavit of Support but don't know how that will affect my refund since I would have received it by then.

Edited February 6, 2008 by Pattu Rani

[payxibka 10,045]

Ugh - I think I am screwed then. I filed right away as single because I wanted to get my refund quickly. I am using it to finance my next trip to Nepal. Since as I understand it Govi would have to send his passport to me for me to get a notarized copy to get a ITIN and we don't want to do something risky like that I just filed as single. I believe I can file an amended return before I need to fill out the Affidavit of Support but don't know how that will affect my refund since I would have received it by then.

Wait until get your refund then file the amended return... the amended return will take into consideration what you previously have done.... including but not limited to previous refunds received

[Imua 0]

Thanks

[brnidokiegurl 0]

Ugh - I think I am screwed then. I filed right away as single because I wanted to get my refund quickly. I am using it to finance my next trip to Nepal. Since as I understand it Govi would have to send his passport to me for me to get a notarized copy to get a ITIN and we don't want to do something risky like that I just filed as single. I believe I can file an amended return before I need to fill out the Affidavit of Support but don't know how that will affect my refund since I would have received it by then.

u have him get the notarized copy and send to you, we also included translations of the marriage certificate and birth certificate along with ours, you can amend

[Goldtrom 0]

Hi lucyrich:

Did you read ALL of the p501 you linked to?

There is ONE small section that says there ARE cases where you can file single. I don't see where they define the cases though, so it is probably best to file as married....

I copied this right from the IRS page:

"Married persons living apart.

If you live apart from your spouse and meet certain tests, you may be considered unmarried.

If this applies to you, you can file as head of household even though you are not divorced or legally separated. If you qualify to file as head of household instead of as married filing separately, your standard deduction will be higher. Also, your tax may be lower, and you may be able to claim the earned income credit. See Head of Household, later. "

See IRS Publication 519, the Tax Guide for Aliens for your detailed answers. Also, IRS Publication 501 has a lot of general information about when to use married versus single filing status, and dependents and exemptions and such.

If you're legally married as of the last day of the tax year, you CANNOT legally file as single. That much is very clear in publication 501. Your choices are generally married filing separately or married filing jointly. Under certain circumstances, if you're living apart from your spouse and you have a qualifying dependent living with you (your spouse won't qualify), you might be eligible to use the filing status "Head of Household", but check the detailed rules listed in publication 501.

The IRS probably doesn't know about your marriage, so filing as single might not be an issue for them. But even if the IRS doesn't catch or punish you for filing as single, be aware that you'll probably eventually have to show your tax returns to the USCIS, either for an affidavit of support, or for an I-751 for removal of conditions, or perhaps eventually for an N-400 citizenship application. When you sign a tax return with filing status of single, you're certifying under penalty of perjury that you are indeed not married. Now, how are you going to explain to the USCIS that they should believe you have a bona fide marriage, when you swore to the IRS that you were single?

As to whether to file jointly or separately, it depends. Read Publication 519. Most of you are describing situations where the alien spouse is a nonresident alien. Ordinarily, a nonresident alien is ineligible to file a joint return, but if the nonresident alien is married to a US Citizen, the two of them can elect to consider the nonresident alien as a resident for the entire year for tax purposes. The bonus is that this allows them to file jointly, and qualify for the lower rates and higher exemptions that a joint return gives them. The downside is that it requires the alien spouse to declare all worldwide income. Income earned outside the US may be shelterable under tax treaties, so you may not end up having to pay US tax on it, but you've still got to declare it.

One further note about a point that always seems to come up in these discussions: Your spouse is NEVER your dependent. If you file a joint return, the two of you can each put down your personal exemptions, for a total of two personal exemptions listed on the return. But that's not the same as a dependent in tax terminology. A dependent is only a "qualifying child" or a "qualifying relative", and a spouse never qualifies under either category. Again, see pub 501, where it says, and I quote directly, "Your spouse is never your dependent".

Publication 501 and 519 may be a bit hard to get through, but they're much easier than immigration guides, IMO.