wierd question about: 1-864 and 2005 Tax return vs filling status

[buzz17 0]

I got married to my sweetheart last year and filled for the 1-130, and papers for K-3,which were all approved and my wife is jetting in on K-3 next sunday for the first time since our marriage. I am planning to file for the 2005 tax return next week. My question is whats my filling status,married filling separately or single? The tax helper i talked to, said for tax purposes only that my filling status is single since my spouse wasnt in the USA. Talking to one paralegal,she told me that for immigration purposes I am legally married, so i have to mention that on my 2005 tax filling in order to file the AOS form #1-864. We have opted to go ahead with the 1-130 consular process instead. So I am in dilemma which path should I take? File as single or married but spouse hasn't even got any SSN # in the USA. So what do I do? Has any one had similar situation? Any experiences?

Thanks

R

[hcj 0]

For your wife's eventual AOS, USCIS is going to want to see a "joint" tax return.

IRS instructions are to file single/married according to what your status was on Dec 31, 2005. I believe you may choose to treat your wife as a "resident alien" even if she was not in the US at any time in 2005. There are instructions on the IRS website -- try doing a search on the topic "resident or non-resident alien" or "alien tax guide".

I'm positive you can file as married and that you can make a declaration to treat your wife as a resident alien.

I'm positive you should not file as "single" since you were not actually single.

I believe there was some other situation where you could file as "head of household" if you don't want to treat your wife as a resident alien, but my memory is really spotty on this one.

The IRS website is actually pretty good, take a look around there and email IRS if you cannot find the answer. I have emailed them in the past and they were actually pretty good at responding (with the correct answer, even).

[buzz17 0]

Thanks so much hcj, for your thoughtful guide. As I write this post,I am looking at the publication 519 which the tax guy didn't even tell me about until I learnt it from this VJ site. Thanks so much. I will do just that.

[hcj 0]

YW. Here are some other links you might find helpful:

Quiz you can take to determine your filing status:

http://www.irs.gov/individuals/article/0,,id=139303,00.html

Quiz you can take to see if you are a resident or non-resident alien:

http://www.irs.gov/individuals/article/0,,id=133628,00.html

Definition of resident and non-resident alien: http://www.irs.gov/taxtopics/tc851.html

IRS Publication for "aliens" -- you already have this but thought I would post it "for posterity" ;o)

http://www.irs.gov/publications/p519/index.html

Info on the head of household thing I mentioned -- you can only do it if you have dependents (not your spouse, but children and such):

http://www.irs.gov/pub/irs-pdf/p17.pdf

"Nonresident alien spouse. 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."

[buzz17 0]

Thanks Hcj. Its a good heads up. Now i am ready to move forward