Lawyer advised to file Single, even though Married

[payxibka 10,045]

I just spoke to my attorney about the filing status I should for my 2008. He told me to file as single since my wife is in Pakistan, and in order to file married I would need her SS#. So, I guess it's ok to file as single for those people whose husband/wife is abroad. Can anyone share their opinion? Thanks.

because my wife should be here by april 15th and she will have a ssn I am waiting to file until she is here. if she is not here by april 15 i will file for an extension. the refund for adding my wife and stepdaughter is worth the wait

Wife yes, stepdaughter... no

my tax attorney says I can claim her. do you know something I dont. please advise

have your tax attorney explain how your non-resident alien step-daughter qualifies as a dependant, who I assume has never stepped foot inside the USA and is NOT a USC. Your spouse gets resident alien tax status not by passing the resident alien "tests" (greencard or substantial presence) but by special exception afforded spouses of USC's. This exception does not allow a non resident (non USC) child/stepchild to ride the parental "coat tail".

Edited February 6, 2009 by payxibka

[ed g 0]

I just spoke to my attorney about the filing status I should for my 2008. He told me to file as single since my wife is in Pakistan, and in order to file married I would need her SS#. So, I guess it's ok to file as single for those people whose husband/wife is abroad. Can anyone share their opinion? Thanks.

because my wife should be here by april 15th and she will have a ssn I am waiting to file until she is here. if she is not here by april 15 i will file for an extension. the refund for adding my wife and stepdaughter is worth the wait

Wife yes, stepdaughter... no

my tax attorney says I can claim her. do you know something I dont. please advise

have your tax attorney explain how your non-resident alien step-daughter qualifies as a dependant, who I assume has never stepped foot inside the USA and is NOT a USC. Your spouse gets resident alien tax status not by passing the resident alien "tests" (greencard or substantial presence) but by special exception afforded spouses of USC's. This exception does not allow a non resident (non USC) child/stepchild to ride the parental "coat tail".

she will be a resident with a ssn when they arrive here hopefully before tax time. I do appreciate your input. I dont want an audit

[maadams2004 0]

SerenityHope is correct. I was actually concerned about the same issue as this is the first filing year under my marriage to my wife who is a Dominican citizen. I called the IRS helpline and spoke to a representative there. She told me that I could submit my return with the applications for ITINs for my wife and step-daughters simultaneously. The woman told me I needed certified copies of birth certificates and passport if passports were available. So my wife went to get the birth certificates for the three of them, they're getting certified and translated, and she'll send them to my CPA stateside for filing.

I would think that this would be preferable to filing single as it does show an official shared financial status. Official documentation that your non-U.S. wife/husband is your dependent.

[edmagenta5 0]

[/color]

your lawyer is smart.. it is the right thing to do,.unless you want to go through the same thing as me and my husband..we have been waiting for 8months now..and I believe, they will make people wait for a year now for new CR1/IR1 filers..it is so sad.. if you file K-1 I can guarantee you will be with your wife after 3months..good luck.. it is hard to be apart.. :)best of luck

I just spoke to my attorney about the filing status I should for my 2008. He told me to file as single since my wife is in Pakistan, and in order to file married I would need her SS#. So, I guess it's ok to file as single for those people whose husband/wife is abroad. Can anyone share their opinion? Thanks.

[payxibka 10,045]

she will be a resident with a ssn when they arrive here hopefully before tax time. I do appreciate your input. I dont want an audit

for 2009 but not 2008

[Teacher Mark 53]

SerenityHope is correct. I was actually concerned about the same issue as this is the first filing year under my marriage to my wife who is a Dominican citizen. I called the IRS helpline and spoke to a representative there. She told me that I could submit my return with the applications for ITINs for my wife and step-daughters simultaneously. The woman told me I needed certified copies of birth certificates and passport if passports were available. So my wife went to get the birth certificates for the three of them, they're getting certified and translated, and she'll send them to my CPA stateside for filing.

I would think that this would be preferable to filing single as it does show an official shared financial status. Official documentation that your non-U.S. wife/husband is your dependent.

Note. Documentation submitted for a dependent should include a

civil birth certificate (unless a passport is submitted).

The passport is the only "stand alone" ID. No birth certificate is required when it is used for the Spouse. I don't know about the children. I don't think they are eligible for ITIN's though. I could be wrong. The Spouse is actually an exemption in this process as well. Not a dependent. You can't claim someone without a SSN as a dependent.

O/P you don't have to do this now. You can file an amended return and claim the money at a later date. I don't know how long you have.

You mentioned that he worked. There is one drawback to this that I haven't seen mentioned. His foreign income becomes taxable. I don't know a whole lot about that though. My Wife doesn't work.

Block charged me $79 to do mine and an additional $30 for audit insurance. If I receive a refund and then it is subsequently found that they screwed up, Block is responsible for the money.

Edited February 6, 2009 by Joe Six-Pack

[jlivings99 0]

I have a quick comment (in a hurry) ... for the IRS you can't be single if you are married ... your choices are married filing joint and married filing separately ... get TIN no matter which status you use because you need to include it

You probably won't get caught or punished but if you want to file correctly then don't file single ...

Note: I teach tax accounting at a university so I know the rules.

[rin and john 71]

I had my husband send a scan of his passport via email. I then had it notarized in the US. I had filed POA and so I wrote some statement on the document saying that "I, so and so, spouse of so and so, appeared before this public notary attesting that this is a real and true copy of so and so's passport issued by the Republic of Ghana, West Africa." I then signed my name and the notary did her thing. Everything seemed well and good. I really don't think that it will be a problem. The IRS have bigger fish to fry.

The Notary is required to actually see the original and attest that the copy is a true copy. Hey, if it works fine but it's not according to Hoyle.

A notary attests to the signature being of the person that is signing a document, not to the authenticity of a document. So what SerenityHope says is accurate.

In our case, Rin and I went to the US Embassy in Bangkok and they stamped her passport and the clerk at the embassy signed the stamp. Wasn't a notarization stamp as much as a certification. Filed it with the W-7 for the ITIN.

Edited February 6, 2009 by rin and john

[payxibka 10,045]

I have a quick comment (in a hurry) ... for the IRS you can't be single if you are married ... your choices are married filing joint and married filing separately ... get TIN no matter which status you use because you need to include it

You probably won't get caught or punished but if you want to file correctly then don't file single ...

Note: I teach tax accounting at a university so I know the rules.

What about those situations where you are legally married but for tax purposes can be considered unmarried? Time to go back to school?

Considered Unmarried

To qualify for head of household status, you must be either unmarried or considered unmarried on the last day of the year. You are considered unmarried on the last day of the tax year if you meet all the following tests.

You file a separate return, defined earlier under Joint Return After Separate Returns .

You paid more than half the cost of keeping up your home for the tax year.

Your spouse did not live in your home during the last 6 months of the tax year. Your spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances. See Temporary absences , under Qualifying Person, later.

Your home was the main home of your child, stepchild, or foster child for more than half the year. (See Home of qualifying person , under Qualifying Person, later, for rules applying to a child's birth, death, or temporary absence during the year.)

You must be able to claim an exemption for the child. However, you meet this test if you cannot claim the exemption only because the noncustodial parent can claim the child using the rules described in Children of divorced or separated parents under Qualifying Child in chapter 3, or in Support Test for Children of Divorced or Separated Parents under Qualifying Relative in chapter 3. The general rules for claiming an exemption for a dependent are explained under Exemptions for Dependents in chapter 3.

http://www.irs.gov/publications/p17/ch02.h...ublink100032144

[rin and john 71]

I have a quick comment (in a hurry) ... for the IRS you can't be single if you are married ... your choices are married filing joint and married filing separately ... get TIN no matter which status you use because you need to include it

You probably won't get caught or punished but if you want to file correctly then don't file single ...

Note: I teach tax accounting at a university so I know the rules.

Agreed, single is not technically correct. If the spouse does not declare themselves as a "resident" alien for tax purposes, then the USC can be considered unmarried for tax purposes if filing HOH. So choices are MFJ, MFS, or HOH (if meet HOH guidelines).

Edit: Payxibka - HOH is the choice if "unmarried"; single is not.

Edited February 6, 2009 by rin and john

[rin and john 71]

I just spoke to my attorney about the filing status I should for my 2008. He told me to file as single since my wife is in Pakistan, and in order to file married I would need her SS#. So, I guess it's ok to file as single for those people whose husband/wife is abroad. Can anyone share their opinion? Thanks.

because my wife should be here by april 15th and she will have a ssn I am waiting to file until she is here. if she is not here by april 15 i will file for an extension. the refund for adding my wife and stepdaughter is worth the wait

Wife yes, stepdaughter... no

my tax attorney says I can claim her. do you know something I dont. please advise

I have wondered about this, as I may be able to file an amended return for 2006. I was pretty much in the same situation; married October 2006, Rin arrived USA April 2007, children in October 2007. I was able to claim the children in 2007 even though they did not live in the USA with us for six months.

The reason I think they may be able to be included for 2006:

1) Rin was considered a US Resident for tax purposes for 2006;

2) Per Pub 501, page 12: "Child's place of residence: Children usually are citizens or residents of the country of their parents"

3) Presence must be at least six months, unless in cases of certain exceptions such as attending school. This is why Rin's children were allowed in 2007 as they remained in Thailand to finish school before coming to the USA.

Item 2) is what I have a hard time getting a handle on. I'd be interested to hear a tax experts take on it.

Edited February 6, 2009 by rin and john

[cp2000 0]

I agree that filing single would be wrong as a general rule. Don't know why your attorney suggested that. Were you talking with a tax attorney or one with a lot of experience in taxes? Most attorneys don't know tax law (like doctors, lawyers are usually specialists and you wouldn't ask a foot doctor what to do about your brain tumor) and some are as bright as a burned out light bulb.

For those who said that they filed single and were fine, you probably weren't filing correctly and benefited from a lack of enforcement. The IRS audits a tiny amount of tax returns and this won't show up as an automatic error in the IRS computer system since they don't automatically get information on when people marry foreigners. I say probably because I don't know any specific details and, as payxibka and rin and john pointed out, there are situations outside of what applies generally that could trip you up.

[payxibka 10,045]

Edit: Payxibka - HOH is the choice if "unmarried"; single is not.

Payxibka has never said anything to the contrary...

The reason I think they may be able to be included for 2006:

1) Rin was considered a US Resident for tax purposes for 2006;

2) Per Pub 501, page 12: "Child's place of residence: Children usually are citizens or residents of the country of their parents"

3) Presence must be at least six months, unless in cases of certain exceptions such as attending school. This is why Rin's children were allowed in 2007 as they remained in Thailand to finish school before coming to the USA.

Item 2) is what I have a hard time getting a handle on. I'd be interested to hear a tax experts take on it.

That is for maintaining tax residency... not for establishing tax residency in the first place

[jurod16 0]

I just spoke to my attorney about the filing status I should for my 2008. He told me to file as single since my wife is in Pakistan, and in order to file married I would need her SS#. So, I guess it's ok to file as single for those people whose husband/wife is abroad. Can anyone share their opinion? Thanks.

Yeah, the guy who handled my taxes last year told me the same thing, my spouse would have to have a SSN to be claimed on my income tax. He also told me you can go back and claim them. So if you got married back in Jan 2007, you can go back and claim them for 2007 and 2008. I'm still looking into it myself though, hopefully I won't forget about this post, if I find more info on this, I'll let you know.

jurod16

[cp2000 0]

I just spoke to my attorney about the filing status I should for my 2008. He told me to file as single since my wife is in Pakistan, and in order to file married I would need her SS#. So, I guess it's ok to file as single for those people whose husband/wife is abroad. Can anyone share their opinion? Thanks.

Yeah, the guy who handled my taxes last year told me the same thing, my spouse would have to have a SSN to be claimed on my income tax. He also told me you can go back and claim them. So if you got married back in Jan 2007, you can go back and claim them for 2007 and 2008. I'm still looking into it myself though, hopefully I won't forget about this post, if I find more info on this, I'll let you know.

jurod16

Both the attorney in the original post and the guy who handled taxes are probably wrong. You generally do not need a SSN to claim a spouse for tax purposes. As others have stated, you can apply for an Individual Tax Identification Number ("ITIN") if your spouse does not qualify for a SSN. See http://www.irs.gov/individuals/article/0,,id=96287,00.html. I say probably because I believe (but have not checked recently) that if your spouse IS eligible for a SSN, then that spouse must get the SSN and can't get or use an ITIN--it's sort of circular logic in that case because your spouse may need a SSN because he or she is eligible for a SSN but would not need a SSN if he or she is not eligible for a SSN.

Either way, you are considered married for tax purposes and must consider filing options other than single.

I would just like to say that there is a lot of bad tax information in the comments generally (please note that this is a general comment and is not specifically pointed towards any comments related to this post--I'm just saying that I've seen a lot of good tax information and a lot of bad tax information during my time on these boards and someone who doesn't know taxes would have a hard time differentiating between the two). Please read the instructions to the Form 1040 to determine what your filing status should be (see http://www.irs.gov/pub/irs-pdf/i1040gi.pdf; especially at page 14) and Publication 519 to determine whether the nonUS spouse has an independent US tax filing obligation (which is related to whether or not you are a resident or nonresident) and if you are interest in filing jointly with your spouse (which could, but may not necessarily, reduce your US taxes) (see http://www.irs.gov/pub/irs-pdf/p519.pdf, especially around page 10, Nonresident Spouse Treated as a Resident)

For those with questions, it would probably be better to call the free IRS tax helpline (see http://www.irs.gov/newsroom/article/0,,id=103554,00.html) rather than trusting the potpourri of answers you might receive to your post here. The IRS people are knowledgeable and helpful--note that I've never worked for the IRS, just have had good experiences in the past. You do not need to identify yourself to ask a question, just say you have a general tax question without giving your identifying information.

Good luck on your taxes.

Edited February 9, 2009 by cp2000