Confused about 2007 taxes while having spouse under CR1

[Goldtrom 0]

I re-read what you wrote... You do say that you can file as head of household.... However, you contradict your initial statement that you can't file as single... Isn't unmarried the same as signle?

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.

[Goldtrom 0]

I always find IRS (and other legal documents) that try to be extremely explicit less clear to the laymen.

For example the line I quoted before... A logical person could assume that "unmarried" == "single". Since this is how it is used in everyday language. \If they were not the same then it would have been clearer to phrase it like this:

"If you live apart from your spouse and meet certain test, you may be able to file as Head of Household"...

vs the original:

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

The successive if's after this first if seem to be saying that unmarried==head of household. But they use unmarried elsewhere to mean single...

Just my 2cents

I re-read what you wrote... You do say that you can file as head of household.... However, you contradict your initial statement that you can't file as single... Isn't unmarried the same as signle?

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.

[payxibka 10,045]

I re-read what you wrote... You do say that you can file as head of household.... However, you contradict your initial statement that you can't file as single... Isn't unmarried the same as signle?

Not necessarily for tax purposes... The IRS says that your tax filing status is determined by your marital status on the last day of the tax year... However, they provide an exception to the "married is married" in the event you qualify for this exception... the exception provides the opportunity to file as Head of Household (normally allowable for only unmarrieds with a qualifying child). The exception does not provide the opportunity to file as Single.... It is really semantics as Married Filing Separate tax rates mimic Single tax rates

[Goldtrom 0]

Yes, I kept reading it more and more and in other sections (such as the Head of Household section), they more clearly define what is meant by "unmarried". I just find their choice of words I mentioned before to be somewhat misleading....

Thanks for your help!

I re-read what you wrote... You do say that you can file as head of household.... However, you contradict your initial statement that you can't file as single... Isn't unmarried the same as signle?

Not necessarily for tax purposes... The IRS says that your tax filing status is determined by your marital status on the last day of the tax year... However, they provide an exception to the "married is married" in the event you qualify for this exception... the exception provides the opportunity to file as Head of Household (normally allowable for only unmarrieds with a qualifying child). The exception does not provide the opportunity to file as Single.... It is really semantics as Married Filing Separate tax rates mimic Single tax rates

[lucyrich 20]

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. "

Context is crucial.

In order to file as single, the criteria are listed in pub 501 under filing status: single. Your filing status is single if, on the last day of the year, you are unmarried or legally separated from your spouse under a divorce or separate maintenance decree, and you do not qualify for another filing status. There's a period at the end of that sentence, and it's very straightforward.

Head of Household isn't so straightforward. In order to file as Head of Household, there are three requirements:

* You are unmarried or “considered unmarried” on the last day of the year.

* You paid more than half the cost of keeping up a home for the year.

* A “qualifying person” lived with you in the home for more than half the year (except for temporary absences, such as school). However, if the “qualifying person” is your dependent parent, he or she does not have to live with you. See Special rule for parent, later, under Qualifying Person.

See the difference: you file as single if you're actually unmarried or legally separated. You can file as HoH if you're either actually unmarried, or "considered unmarried". There's a whole set of criteria for deciding if you're "considered unmarried" for head of household purposes. But being "considered unmarried" for head of household purposes doesn't mean you are considered unmarried for the purpose of using filing status "single". In order to file as single, it's not enough to be considered unmarried, you've got to actually BE unmarried or legally separated under a divorce or separate maintenance decree.

The whole "considered unmarried" stuff is only in the context of filing status "head of household". That's the only place it appears in Pub 501.

While I'm here, one paragraph that's of likely interest to many VJ'ers.

You are considered unmarried for head of household purposes if your spouse was a nonresident alien at any time during the year and you do not choose to treat your nonresident spouse as a resident alien. However, your spouse is not a qualifying person for head of household purposes. You must have another qualifying person and meet the other tests to be eligible to file as a head of household.

[karla5001 0]

im still confused....my situation is im married my spouse is still in el salvador...Im currently still a dependent on my parents taxes (im 19 years old and a college student (BA in nursing) living with my parents, using their health insurance)

so how do i file....

i will call the IRS office tommorow!

Edited February 6, 2008 by karla5001

[Delicia 1]

im still confused....my situation is im married my spouse is still in el salvador...Im currently still a dependent on my parents taxes (im 19 years old and a college student (BA in nursing) living with my parents, using their health insurance)

so how do i file....

i will call the IRS office tommorow!

I would definitely call the IRS. From all the verbage I just scanned through on the IRS site, they only refer to 'unmarried dependents.' Your parents might have lost the ability to claim you as a dependent since you are now married.

[Arlington 5]

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)

Uy! Boy, I hadn't thought about this. Thanks for the heads-up. So the names on the account have to line up with the names on the refund check. Still, it's worth it.

[crys 1]

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

What if i direct deposited it in my return but my account doesn't have my husband's name added?

[thermophile 0]

call your bank and ask. I never had any issue with my bank accepting the direct deposit with both our names, but maybe your's would. you have to ask to find out.

[Danyel y Miguel 0]

wow i already filed my taxes and filed as single.... and now from reading all this im worried it might of screwed me over quite a bit when it comes down to the affidavit of support (which i'll have to have a joint sponsor for anyways) sooo you think i should have my tax return ammended? or leave it be? i filled single, & i have two dependents and got EIC for both.

[crys 1]

Can i have my husband's passport notarized in any notary public here in the U.S.?

[ccb3112 0]

Can i have my husband's passport notarized in any notary public here in the U.S.?

I would like to know the same, Wife will be here in March