Need help to understand information regarding ITIN

[rin and john 71]

An ITIN is typically obtained at the same time as tax filing. Rin and I married in October 2006 and she received her visa and came to the USA in April 2007. I filed my 2006 return in April 2007 and had to include the form for the ITIN with it (submitted a paper return and had to send to a different address). By doing so, I could file "married filing jointly" even though Rin was not present in the USA a single day of 2006 (she had no foreign income, but would have had to include it if she had).

With regards to the SSN, Rin and the children did not get one until September 2008. I had waited to file AOS until we were relatively positive that the green cards would be after our 2nd anniversary (making them 10 yr gc's instead of 2 yrs). The only issue for us, was I delayed filing taxes this year until after they had SSNs because a SSN was necessary to get the tax rebate. Otherwise I would have filed this year with the ITIN again.

Questions:

Kirstein24 - When were you married? If in 2007, your husband could have filed "married filing jointly". If you had little or no foreign income this would have lowered your taxes or increased your refund. Also, you cannot be listed as a dependent. You are a spouse. Your husband's only filing options are "married filing jointly" or "married filing separately".

Rogerbhai - Yes you can get an ITIN for a spouse even if they do not reside in the USA. I did while waiting for Rin's K3 approval.

thanks you mentioned you filed your return in 2007 with ITIN application after Rin was in US.. that conflicts with your last statement "you can get an ITIN for a spouse even if they do not reside in the USA. I did while waiting for Rin's K3 approval." can you please clarify what you meant.. can I apply for my wifes ITIN now, or do I have to wait till I file taxes?

thanks

You can file for an ITIN without your spouse being present in the USA. You should be able to get one without filing taxes, but not sure why you would. It is only valid for federal tax purposes. More info can be found here:

http://www.irs.gov/pub/irs-pdf/fw7.pdf

Other than filing a federal return, I didn't need one. Your spouse will have to go to the embassy and have a copy of her passport certified/validated. When I went with Rin, they knew what I was talking about. I asked for them to notarize it and they gave me something else. Can't remember exactly what it was.

John

True your spouse can file for a ITIN any time of the year. But it might not be a good

idea. Not sure why you would should be stated it's not in your or your loved ones

interest to do so. You or she doe's not need this, if your situation is self employed,

take the standard deduction is all you claim. In our case wife has a ITIN. Has not been

able to work without a SSN. Had no income at all. As of one week ago we found through

H&R block and four hours on the phone with IRS. Some reason we got some kinda

marriage penalty.

I did find out the difference between using as the commercial says "i got people"

and tax software the same company sells. Those "people" might not even want to

find deductions you can take legally. That $69.95 software will without proof to

"i got people". In my HO for 3 years now. (yes we got the ITIN when wife was

still in China). Your case may be different but in ours the poster of the website

for ITIN's should call them before the post. As with uscis what you see on a website

may not be true.

Don't think a ITIN will get you anything but a number to pay fed taxes for

a job she or him don't have. Thats all its for. If you found a way around it

more power to you. It must have been software and not "people".

You can't rely on a website someone posts, he should know better.

Futhermore yes your spouse can apply for a ITIN while over seas.

But you need to know just what good it will do you. In our case and

many others no good at all. As with all things .gov you cannot take a page

pasted from anyone as absolute law. You have to find whats best for you.

A pasted website, do not for any reason rely on that.

Another says got a 5K refund. But didn't go into details. Maybe an audit

coming soon. Point is in this tax mess since your spouse is in another

country or he/she is here and has no income. We got burned.

That may cost you, in our case more than we could pay.

Advice we got last week from H&R block as well as "agent ))(&%^$

from the IRS was she is not a citizen, has no income at all. Continue

to claim head of household until she has an SSN and a Job.

No dis-respect to out of date IRS posters or 5k refunds.

Do not rely on any of them. Take the time to call them,

explain your situation, DO NOT rely on anything posted.

Last thing you want is the IRS down on you. You as well

as I are on a K visa. You dont keep this right by them

sit back and watch AOS go right out the window.

Not sure exactly what you are getting at. Posters here are sharing their experience, same as you. You made your decision based on what an IRS rep and HR Block rep told you. From personal experience, they can be way off on their advise.

There is no income level (up to the limit of the tax table - $100,000 in AGI) where someone pays less tax as "HOH" versus "married filing jointly".

http://www.irs.gov/pub/irs-pdf/i1040tt.pdf

So, if you paid a penalty for filing married, one of the following had to occur:

1) You filed "married filing separately". This would be more of a tax burden than HOH as you would essentially be taxed as if single.

2) Your SO had foreign income that increased your reportable income.

The mistake IRS reps made when I spoke to them regarding filing "married filing jointly" was they saw her as a "non-resident alien" as she was not present in the USA. But if you read the 1040 filing instructions and IRS Publication 519, it clearly allows for a "non-resident alien" spouse to elect to be treated as a "resident alien" spouse for tax purposes. In Pub. 519,

http://www.irs.gov/pub/irs-pdf/p519.pdf

Figure 1-A, page 5 is frequently used by IRS reps, HR Block reps, et. al. as stating that someone without a GC or substantial presence in the USA cannot be a "resident alien" for tax purposes. This leaves you with either "Married filing separately" or "HOH". However, Figure 1-A is over-simplified in that it ignores certain individuals options of declaring themselves as "resident aliens" for tax purposes. Page 10 of Pub 519 clearly allows a foreign spouse to choose to be treated as a "resident alien". By doing so, you can file "married filing jointly" which is almost always better than any other filing option (barring item 2 above where the foreign spouse had substantial foreign income).

JingJoseph - If your spouse had no income, your taxes should be lowest by filing "married filing jointly".