How to file tax jointly(f1 student married to USC)

[Amy&Xin 0]

I am still a student. Our ISO info sessions don't begin until a few weeks later. I want to get this done fast. Thanks.

Just to clarify this, I do have a SSN, and I got it probably in Sept of 2006. I have incomes from two states in 2008.

Are you still a student? Check with your school's international office, they may have a tax advising workshop planned, my university has several planned in March.

[Nich-Nick 3,354]

Just to clarify. With the statement I told you about above attached to your return. You file joint with the USC spouse just like any American couple would file taxes. You follow the regular instructions and forget you are an alien while you are filling out the tax return. In addition, if you didn't collect the $600 rebate for 2007 taxes, and you wouldn't have since you were an alien, then you will receive it this year under the Rebate Recovery Credit. It's not a check, but comes off your tax bill and would result in a $600 higher refund if you're getting a refund. If the USC got her $600 last year, then none this year for her.

Edited February 10, 2009 by Nich-Nick

[Amy&Xin 0]

Can I still use the treaty between my country and the US? It is $5000 treaty, meaning $5000 of my income is not taxable.

No, I didn't collect the 600 dollars as I am an international student. My wife probably did. So we won't get this 600 dollars this year, am I right?

I am still a student. Our ISO info sessions don't begin until a few weeks later. I want to get this done fast. Thanks.

Just to clarify this, I do have a SSN, and I got it probably in Sept of 2006. I have incomes from two states in 2008.

Are you still a student? Check with your school's international office, they may have a tax advising workshop planned, my university has several planned in March.

[Nich-Nick 3,354]

A married couple in 2007 got $1200. A single person got $600. A person is eligible for the new 2008 Rebate Recovery Credit is their filing status changed in 2008 from what it was 2007.

So 2007 - wife - single - got 600

In 2008 - wife- now married filing joint is eligible because her filing status changed from single to married.

So there's $1200 available to a married couple in 2008.

Did wife get some in 2007? Yes she got $600. In 2008 gets $0 because she already got her share.

Did new husband get some in 2007? No. In 2008 he gets $600.

I don't know that much about the Tax Treatys. I think you've got to pay taxes to the US or your country. If you are paying taxes to your country, then fine. But a Tax Treaty doesn't excuse you from paying taxes. It sets your rate of taxes if an alien. An alien would pay something like 30% in taxes to the US for money earned in the US. But if there was a treaty with your country for maybe 20%, then you would pay 20% because the treaty allowed you a better rate. But if you are married to a US citizen and file the election stating you want to be treated as a resident alien for tax purposes, you are not doing any treaty stuff anymore. You are filing as an American and pay the American rate, which is probably lower if you are students and have little income.

You should try both ways. But your wife must file married filing separately and you as a nonresident alien the other way. Two returns. And if filing separately, you don't get your $600. Pick the one that results in the lowest over taxes or better refund.

Edited February 10, 2009 by Nich-Nick

[Mint518 0]

hi, payxibka,

here is what I found on IRS website. It seems like I can't count the days since I am being a student here. Did I understand this correctly?

Exempt Individual

Do not count days for which you are an exempt individual. The term "exempt individual " does not refer to someone exempt from U.S. tax, but to anyone in the following categories who is exempt from counting days of presence in the U.S.:

An individual temporarily present in the United States as a foreign government-related individual

A teacher or trainee temporarily present in the United States under a "J " or "Q " visa, who substantially complies with the requirements of the visa

A student temporarily present in the United States under an "F, " "J, " "M, " or "Q " visa, who substantially complies with the requirements of the visa

A professional athlete temporarily in the United States to compete in a charitable sports event

That does apply to you BUT you married a USC so you can throw that out because you get special privileges from the IRS.

If you do not have a green card, you can declare with a statement attached to the 1040 filing form that you both elect to treat the spouse as a resident alien for income tax purposes. You both have to sign it. Then you can file jointly. Otherwise a non resident alien can't file jointly. When you make that declaration, he is treated as a resident alien for the whole year 2008, not just the time he has been here. By making that declaration, worldwide income for the whole year 2008 must be reported for both spouses. In your case, you have no foreign income to report, but you do report any US income.

Attach a statement, signed by both spouses, to your joint return for the first tax year for which the choice applies. It should contain the following information.

• A declaration that one spouse was a nonresident alien and the other spouse a U.S. citizen or resident alien on the last day of your tax year, and that you choose to be treated as U.S. residents for the entire tax year.
• The name, address, and identification number of each spouse. (If one spouse died, include the name and address of the person making the choice for the deceased spouse.)

The statement goes at the end of your paper tax return. You can't e-file because you have to send in a statement with signatures this year. You don't have to do that again next year.

I have a little different view. I think Amy&Xin does not need to attach a statement to elect to treat the spouse as a resident alien for income tax purposes.

In default, he is a resident pursuant to the substantial presence test, but sicne he is a F-1 student he has a privelage to be treated as non-resident by filing Form 8843 "Statement for Exempt Individuals and Individuals With a Medical Condition". If he files Form 8843 on time (by April 15), his presnese in the U.S. as F-1 student will be counted as "0" day for purpose of substantial presence test which make him non-resident under the substantial presence test. But if he fails to submit Form 8843, he will remain to be a resident for tax purposes.

So, he has two options.

(1) If he wants to be treated as resident (which enable him to file joint return), he can do so, if he does not file Form 8843.

(2) If he wants to be treated as non-resident (which enable him to use tax benefits without an issue, also he does not need to report his income outside of US), he should file Form 8843 along with his 1040NR (or 1040NR-EZ). Sicne non-resident cannot file joint return, his wife has to file 1040 (or 1040-EZ) under married filing separately.

I do not know whether he can use tax benefits even under option (1) -- It depends how it is written in the tax treaty between US and his home country.

[Mint518 0]

Hi, everybody,

I did some research using google, but didn't find anything very useful. I would like to give a shot here. I am currently on f1 visa, and I married to a US citizen last November. I worked as a TA/RA on campus, and last summer, I made some money on my internship, using CPT as my authorization to work. We already filed i130/i485/131/765, so we are collecting evidence to show that we indeed live together, so we would like to file tax jointly this year. But I don't know how exactly to do this, can anyone help, or point me to a source that explains this?

OK - so back to the original post. You actually want to file married jointly. In that case, I think as Eric-Pris noted (post #6), Form 1040 is the form you should use.

[Amy&Xin 0]

Hi, Mint518,

Thanks very much. Your explanation is really clear and in great details. I now have a general idea how to file the tax. I will talk to a tax specialist with my wife this week too. Thanks everybody.

hi, payxibka,

here is what I found on IRS website. It seems like I can't count the days since I am being a student here. Did I understand this correctly?

Exempt Individual

Do not count days for which you are an exempt individual. The term "exempt individual " does not refer to someone exempt from U.S. tax, but to anyone in the following categories who is exempt from counting days of presence in the U.S.:

An individual temporarily present in the United States as a foreign government-related individual

A teacher or trainee temporarily present in the United States under a "J " or "Q " visa, who substantially complies with the requirements of the visa

A student temporarily present in the United States under an "F, " "J, " "M, " or "Q " visa, who substantially complies with the requirements of the visa

A professional athlete temporarily in the United States to compete in a charitable sports event

That does apply to you BUT you married a USC so you can throw that out because you get special privileges from the IRS.

If you do not have a green card, you can declare with a statement attached to the 1040 filing form that you both elect to treat the spouse as a resident alien for income tax purposes. You both have to sign it. Then you can file jointly. Otherwise a non resident alien can't file jointly. When you make that declaration, he is treated as a resident alien for the whole year 2008, not just the time he has been here. By making that declaration, worldwide income for the whole year 2008 must be reported for both spouses. In your case, you have no foreign income to report, but you do report any US income.

Attach a statement, signed by both spouses, to your joint return for the first tax year for which the choice applies. It should contain the following information.

• A declaration that one spouse was a nonresident alien and the other spouse a U.S. citizen or resident alien on the last day of your tax year, and that you choose to be treated as U.S. residents for the entire tax year.
• The name, address, and identification number of each spouse. (If one spouse died, include the name and address of the person making the choice for the deceased spouse.)

The statement goes at the end of your paper tax return. You can't e-file because you have to send in a statement with signatures this year. You don't have to do that again next year.

I have a little different view. I think Amy&Xin does not need to attach a statement to elect to treat the spouse as a resident alien for income tax purposes.

In default, he is a resident pursuant to the substantial presence test, but sicne he is a F-1 student he has a privelage to be treated as non-resident by filing Form 8843 "Statement for Exempt Individuals and Individuals With a Medical Condition". If he files Form 8843 on time (by April 15), his presnese in the U.S. as F-1 student will be counted as "0" day for purpose of substantial presence test which make him non-resident under the substantial presence test. But if he fails to submit Form 8843, he will remain to be a resident for tax purposes.

So, he has two options.

(1) If he wants to be treated as resident (which enable him to file joint return), he can do so, if he does not file Form 8843.

(2) If he wants to be treated as non-resident (which enable him to use tax benefits without an issue, also he does not need to report his income outside of US), he should file Form 8843 along with his 1040NR (or 1040NR-EZ). Sicne non-resident cannot file joint return, his wife has to file 1040 (or 1040-EZ) under married filing separately.

I do not know whether he can use tax benefits even under option (1) -- It depends how it is written in the tax treaty between US and his home country.

[Eric-Pris 1,606]

Amy&Xin,

As far as I know in order for you to be treated as US resident for tax purposes, you need to be in the US for more than 5 years. You can go to IRS website and find out if you can be treated as US resident for tax purposes or not. Since you mentioned that you've been in the US since 2006, that makes you not eligible to be treated as US resident for tax purposes

I wish people would not comment on things they know little or nothing about. It's obvious people try to help, but they sometimes do more harm than good.

[Mint518 0]

I have a little different view. I think Amy&Xin does not need to attach a statement to elect to treat the spouse as a resident alien for income tax purposes.

In default, he is a resident pursuant to the substantial presence test, but sicne he is a F-1 student he has a privelage to be treated as non-resident by filing Form 8843 "Statement for Exempt Individuals and Individuals With a Medical Condition". If he files Form 8843 on time (by April 15), his presnese in the U.S. as F-1 student will be counted as "0" day for purpose of substantial presence test which make him non-resident under the substantial presence test. But if he fails to submit Form 8843, he will remain to be a resident for tax purposes.

So, he has two options.

(1) If he wants to be treated as resident (which enable him to file joint return), he can do so, if he does not file Form 8843.

(2) If he wants to be treated as non-resident (which enable him to use tax benefits without an issue, also he does not need to report his income outside of US), he should file Form 8843 along with his 1040NR (or 1040NR-EZ). Sicne non-resident cannot file joint return, his wife has to file 1040 (or 1040-EZ) under married filing separately.

I do not know whether he can use tax benefits even under option (1) -- It depends how it is written in the tax treaty between US and his home country.

Umm... I am having a second thought. Probably, w1331 and Nich-Nick might be correct and I am one who is cofused.

I reread the instruction to Form 8843, which says:

Penalty for Not Filing Form 8843

If you do not file Form 8843 on time, you may not exclude the days you were present in the United States

as a professional athlete or because of a

medical condition or medical problem that arose while you were in the United States. Failure to exclude days of presence in the United States could

result in your being considered a U.S. resident under the substantial presence test.

So, it does not mention about any penalty for non filing of Form 8843 by student (F-1 holder).

Also, I found this article titled "Ten Common Tax Return Erros" which pointed that many foreign students erroneously use Form 1040 despite it is not availalbe to them. And this article does not discuss whether F-1 student can chose to be a resident by intentionally forget to file Form 8843.

http://www.windstar.com/public/ten-common-errors.pdf

Since exempt individual can generally use this Form 8843 only for 5 years, as w1331 said F-1 student might be considered as non-resident for the first 5 year (regardless of the filing of Form 8843), and as Nick-Nick said to attach a statement to elect to treat the spouse as a resident alien for income tax purposes might be actually required.

Amy&Xin - Since you mentioned you will talk with a specialist, would you share the specialist's view on this point after such talk?

[Amy&Xin 0]

I did my tax at HR block today. Yeah, like one of the post said, I had to attach a paper signed by me and wife stating that I want to elect to file tax as a resident.

I have a little different view. I think Amy&Xin does not need to attach a statement to elect to treat the spouse as a resident alien for income tax purposes.

In default, he is a resident pursuant to the substantial presence test, but sicne he is a F-1 student he has a privelage to be treated as non-resident by filing Form 8843 "Statement for Exempt Individuals and Individuals With a Medical Condition". If he files Form 8843 on time (by April 15), his presnese in the U.S. as F-1 student will be counted as "0" day for purpose of substantial presence test which make him non-resident under the substantial presence test. But if he fails to submit Form 8843, he will remain to be a resident for tax purposes.

So, he has two options.

(1) If he wants to be treated as resident (which enable him to file joint return), he can do so, if he does not file Form 8843.

(2) If he wants to be treated as non-resident (which enable him to use tax benefits without an issue, also he does not need to report his income outside of US), he should file Form 8843 along with his 1040NR (or 1040NR-EZ). Sicne non-resident cannot file joint return, his wife has to file 1040 (or 1040-EZ) under married filing separately.

I do not know whether he can use tax benefits even under option (1) -- It depends how it is written in the tax treaty between US and his home country.

Umm... I am having a second thought. Probably, w1331 and Nich-Nick might be correct and I am one who is cofused.

I reread the instruction to Form 8843, which says:

Penalty for Not Filing Form 8843

If you do not file Form 8843 on time, you may not exclude the days you were present in the United States

as a professional athlete or because of a

medical condition or medical problem that arose while you were in the United States. Failure to exclude days of presence in the United States could

result in your being considered a U.S. resident under the substantial presence test.

So, it does not mention about any penalty for non filing of Form 8843 by student (F-1 holder).

Also, I found this article titled "Ten Common Tax Return Erros" which pointed that many foreign students erroneously use Form 1040 despite it is not availalbe to them. And this article does not discuss whether F-1 student can chose to be a resident by intentionally forget to file Form 8843.

http://www.windstar.com/public/ten-common-errors.pdf

Since exempt individual can generally use this Form 8843 only for 5 years, as w1331 said F-1 student might be considered as non-resident for the first 5 year (regardless of the filing of Form 8843), and as Nick-Nick said to attach a statement to elect to treat the spouse as a resident alien for income tax purposes might be actually required.

Amy&Xin - Since you mentioned you will talk with a specialist, would you share the specialist's view on this point after such talk?