Tax Question

[Rocky_nBullwinkle 6]

The problem with that, is to be a non-resident alien, you have be to be present in the US. Otherwise, you are not an alien! Check out the "residency test", for clarification. A foreign spouse is not a non-resident alien, from what I can determine.

If you are not a USC then you are an alien..... (alien: a resident born in or belonging to another country who has not acquired citizenship by naturalization)

If you are an alien then you are either a resident alien or a nonresident alien....

Residency test is to determine whether the alien is a resident or not.... If not a resident then a nonresident

I was out for a while. Granted, the IRS makes certain definitions "for Tax Purposes Only." The USCIS uses the "dry land standard" to determine when a foreigner becomes an alien.

There is a simple test, I am told, that the IRS uses: When did they first start living together? That is the tax-year that the election can be made. Prior to that, a foreign spouse is just a foreign spouse, having not incurred any US tax liability. The US spouse must file seperately.

Edited January 16, 2009 by Rocky_nBullwinkle

[nunyab 0]

wow..... didn't think that would be such a touchy question but thanks He hasn't been in the u.s. for the '08 year will be here in 5 days he had 0 income last year and i claimed head of household and single cause the w2 said if they are a non residant alien i couldn't count them. i am a single mother sharing joint custody of two kids. ( I am claiming one the ex the other). So when he gets his SSN and I file the return I can claim joint or file as a dependant (sorry if i am stepping into something) just seeing my options and getting information cause it looks like either way can work.

[payxibka 10,045]

I was out for a while. Granted, the IRS makes certain definitions "for Tax Purposes Only." The USCIS uses the "dry land standard" to determine when a foreigner becomes an alien.

There is a simple test, I am told, that the IRS uses: When did they first start living together? That is the tax-year that the election can be made. Prior to that, a foreign spouse is just a foreign spouse, having not incurred any US tax liability. The US spouse must file seperately.

Provide links...

[rin and john 71]

Your spouse doesn't have to be in the U.S to file MFJ. Payxibka has it right; anyone who is not a USC is an alien as far as the IRS is concerned. Rin and I married in 2006. When we filed in April 2007, I was able to file MFJ even though Rin did not arrive in the USA until April 2007. However, we could not include her children as dependents on our tax return until they were physically present in the USA.

[rin and john 71]

wow..... didn't think that would be such a touchy question but thanks He hasn't been in the u.s. for the '08 year will be here in 5 days he had 0 income last year and i claimed head of household and single cause the w2 said if they are a non residant alien i couldn't count them. i am a single mother sharing joint custody of two kids. ( I am claiming one the ex the other). So when he gets his SSN and I file the return I can claim joint or file as a dependant (sorry if i am stepping into something) just seeing my options and getting information cause it looks like either way can work.

If you were married in 2008, you can file MFJ for tax year 2008 (filing deadline of April 15, 2009). Your spouse does not have to be present in the USA at any time during the year. With him having zero income, it would save you money to file MFJ vs. HOH (you can calculate your savings using the tax table - http://www.irs.gov/pub/irs-pdf/i1040tt.pdf)

Additionally, your spouse cannot be claimed as a dependent. They are a spouse and receive an exemption, same as you, when you file MFJ.

John

[Rocky_nBullwinkle 6]

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

Q.E.D.

[payxibka 10,045]

From your cite:

Nonresident Aliens

If you are an alien (not a U.S. citizen), you are considered a nonresident alien unless you meet be one

of the two tests described next under Resident Aliens.

Were you a lawful permanent resident of the United States (had a “green card”) at any time during 2007? NO

Were you physically present in the United States on at least 31 days during 2007? NO

You are a nonresident alien for U.S. tax purposes.

Edited January 16, 2009 by payxibka

[rin and john 71]

You can also read IRS pub 54, for USC living abroad. A USC abroad can file MFJ by having his/her spouse treated as a resident alien for tax purposes. That spouse may never have nor ever plan to enter the USA; but can be a "resident" for tax purposes.

A post from the past (one of many where this has been discussed to death):

http://www.visajourney.com/forums/index.php?showtopic=109

Edited January 16, 2009 by rin and john

[Rocky_nBullwinkle 6]

You can also read IRS pub 54, for USC living abroad. A USC abroad can file MFJ by having his/her spouse treated as a resident alien for tax purposes. That spouse may never have nor ever plan to enter the USA; but can be a "resident" for tax purposes.

A post from the past (one of many where this has been discussed to death):

http://www.visajourney.com/forums/index.php?showtopic=109

Did you even look at the snapshot?

[payxibka 10,045]

Did you read the guide? Your snapshot is referring to Dual Staus Aliens, but nevertheless does not change anything

Pub 519

Introduction

For tax purposes, an alien is an individual who is not a U.S. citizen. Aliens are classified as nonresident aliens and resident aliens. (These sentences are quite clear and do not indicate an except for)

Using the decision tree (as provided in Pub 519) the purpose is to determine resident alien versus nonresident alien (paraphrased).

Q1. Do you have a greencard? NO

Q2. Were you present in the USA for mopre than 31 days? NO

Now it is apparent the alien cannot be a resident alien, so by default they are nonresident. Even the decision tree language leaves NO doubt. "You are a nonresident alien for U.S. tax purposes."

Later on in Pub 519

Nonresident Spouse Treated as a Resident

If at the end of your tax year, you are married and one spouse is a U.S. Citizen or a resident alien and the other spouse is a nonresident alien, yuo can choose to treat the nonresident alien spouse as a U.S. resident. This includes situations in which one spouse is a nonresident alienat the beginning of the tax year, but a resident alien at the end of the tax year.

You are both taxed on your world wide income.

Edited January 16, 2009 by payxibka

[rin and john 71]

You can also read IRS pub 54, for USC living abroad. A USC abroad can file MFJ by having his/her spouse treated as a resident alien for tax purposes. That spouse may never have nor ever plan to enter the USA; but can be a "resident" for tax purposes.

A post from the past (one of many where this has been discussed to death):

http://www.visajourney.com/forums/index.php?showtopic=109

Did you even look at the snapshot?

Yes, I did. Doesn't change the fact that a foreign spouse is a non-resident alien and has the right to declare themselves as a resident alien for tax purposes, regardless of their place of residence in this world.

Additionally, I did exactly what you are stating is not possible (or at least legal). I had to go to the embassy in Bangkok with Rin, show them our marriage certificate, have a copy of her passport notarized, along with her statement that she wanted to be considered as a resident alien for tax purposes, and submit it with our taxes (along with a W-7 for the ITIN). The lady at the embassy knew exactly what I wanted as it was quite a common

occurence.

Edited January 16, 2009 by rin and john

[Rocky_nBullwinkle 6]

Okay, now that I found it, and I can humbly, and comfortably admit defeat:

http://www.law.cornell.edu/uscode/html/usc...13----000-.html

You have to read section "h" to clarify section "g". The underlines support your position.

(g) Election to treat nonresident alien individual as resident of the United States (1) In general A nonresident alien individual with respect to whom this subsection is in effect for the taxable year shall be treated as a resident of the United States— (A) for purposes of chapter 1 for all of such taxable year, and (B) for purposes of chapter 24 (relating to wage withholding) for payments of wages made during such taxable year. (2) Individuals with respect to whom this subsection is in effect This subsection shall be in effect with respect to any individual who, at the close of the taxable year for which an election under this subsection was made, was a nonresident alien individual married to a citizen or resident of the United States, if both of them made such election to have the benefits of this subsection apply to them. (3) Duration of election An election under this subsection shall apply to the taxable year for which made and to all subsequent taxable years until terminated under paragraph (4) or (5); except that any such election shall not apply for any taxable year if neither spouse is a citizen or resident of the United States at any time during such year. (4) Termination of election An election under this subsection shall terminate at the earliest of the following times: (A) Revocation by taxpayers If either taxpayer revokes the election, as of the first taxable year for which the last day prescribed by law for filing the return of tax under chapter 1 has not yet occurred. (B) Death In the case of the death of either spouse, as of the beginning of the first taxable year of the spouse who survives following the taxable year in which such death occurred; except that if the spouse who survives is a citizen or resident of the United States who is a surviving spouse entitled to the benefits of section 2, the time provided by this subparagraph shall be as of the close of the last taxable year for which such individual is entitled to the benefits of section 2. © Legal separation In the case of the legal separation of the couple under a decree of divorce or of separate maintenance, as of the beginning of the taxable year in which such legal separation occurs. (D) Termination by Secretary At the time provided in paragraph (5). (5) Termination by Secretary The Secretary may terminate any election under this subsection for any taxable year if he determines that either spouse has failed— (A) to keep such books and records, (B) to grant such access to such books and records, or © to supply such other information, as may be reasonably necessary to ascertain the amount of liability for taxes under chapter 1 of either spouse for such taxable year. (6) Only one election If any election under this subsection for any two individuals is terminated under paragraph (4) or (5) for any taxable year, such two individuals shall be ineligible to make an election under this subsection for any subsequent taxable year. (h) Joint return, etc., for year in which nonresident alien becomes resident of United States (1) In general If— (A) any individual is a nonresident alien individual at the beginning of any taxable year but is a resident of the United States at the close of such taxable year, (B) at the close of such taxable year, such individual is married to a citizen or resident of the United States, and <A name=h_1_C>© both individuals elect the benefits of this subsection at the time and in the manner prescribed by the Secretary by regulation, then the individual referred to in subparagraph (A) shall be treated as a resident of the United States for purposes of chapter 1 for all of such taxable year, and for purposes of chapter 24 (relating to wage withholding) for payments of wages made during such taxable year. http://' target="_blank">(2) Only one election If any election under this subsection applies for any 2 individuals for any taxable year, such 2 individuals shall be ineligible to make an election under this subsection for any subsequent taxable year.

[payxibka 10,045]

Your welcome, glad to assist in providing you with a new wrinkle in your brain..

[rin and john 71]

Now time to move on and figure out when foreign step-children become dependents! (I never got a very clear answer from the IRS helpline in three calls to them - the last lady basically told me to include them on my return and the IRS would let me know if it is allowed)

[payxibka 10,045]

Now time to move on and figure out when foreign step-children become dependents! (I never got a very clear answer from the IRS helpline in three calls to them - the last lady basically told me to include them on my return and the IRS would let me know if it is allowed)

Why is that so difficult? Just do the residency and dependancy test....

To claim a dependency exemption for a qualifying relative, the following dependency tests must be met:

1) The member of household or relationship test,

2) The citizen or resident test,

3) The joint return test,

4) The gross income test, and

5) The support test.

based on your timeline data alone..

Tax Year 2007

1) Member of household or relationship test?

Member of household? NO did not live the entire year

Relationship? YES, stepchild

2) Citizen or resident?

Citizen? NO

Resident?

greencard? NO

substantial presence (more than 173 days)? YES

Resident alien for tax purposes!!!

Joint Return Test

Able to be claimed on another taxpayers return? NO

Gross Income Test

Did the person's gross income equaled or exceeded the exemption amount for the tax year? NO

Support Test

Did you contribute more than half of there support? I assume YES

You pass all required

DEPENDANT!!!

Edited January 16, 2009 by payxibka