Filing tax return as single this year is spouse live outside USA

[Me and my wife 9]

If your spouse live outside the UNited States

I went to see tax professional, and H & R block to ask issues about "Filing Status". They recommend to file as a "filing single". When my spouse comes to USA, then file amendment for tax return. I have read people planning to apply for ITIN number. A person has to be present in USA to apply for ITIN. Besides, it can take upto 6 weeks as the IRS has to go through different documnentation like different types of identification. Thus the best bet would be filing as single and then file amendment when the spouse gets in USA. Thanks

[CarlosAndSveta 808]

If your spouse live outside the UNited States

I went to see tax professional, and H & R block to ask issues about "Filing Status". They recommend to file as a "filing single". When my spouse comes to USA, then file amendment for tax return. I have read people planning to apply for ITIN number. A person has to be present in USA to apply for ITIN. Besides, it can take upto 6 weeks as the IRS has to go through different documnentation like different types of identification. Thus the best bet would be filing as single and then file amendment when the spouse gets in USA. Thanks

If you are married then you should not file as single. That is technically not correct. Please read this thread to see what are your options:

Filing Taxes as Married

[CarlosAndSveta 808]

Doing what your tax professionals recommended is probably the most convenient thing for you to do but it does not mean it is the correct thing to do. I suggest you seriously consider what affect this might have on trying to bring your spouse to the U.S. If the USCIS finds out that you purposely filed an incorrect tax return just because it was more convenient for you then they might look at that as you and your spouse only wanting to obey U.S. law if you agree with it or it doesn't inconvenience you.

[rin and john 71]

If you are married, you are married; filing single is not an option. File either married filing jointly or married filing separately. Also, an ITIN does not require you to be present in the USA to file. Most US Embassies will provide the appropriate notarization of the foreign spouses passport. Then the ITIN (W-7) and tax return are filed together to the address shown on the W-7 instructions.

Frequently, tax preparers give bad information (I also received bad info from the IRS help desk, so H&R Block is not alone in misinformation). www.irs.gov has lots of good documentation for foreigners or those married to foreigners.

John

[CarlosAndSveta 808]

Please talk to your tax professionals and ask them how their advice to you to file single reconciles with this part of the Internal Revenue Code:

§ 7703. Determination of marital status

(a) General rule

For purposes of part V of subchapter B of chapter 1 and those provisions of this title which refer to this subsection—

(1) the determination of whether an individual is married shall be made as of the close of his taxable year; except that if his spouse dies during his taxable year such determination shall be made as of the time of such death; and

(2) an individual legally separated from his spouse under a decree of divorce or of separate maintenance shall not be considered as married.

(b) Certain married individuals living apart

For purposes of those provisions of this title which refer to this subsection, if—

(1) an individual who is married (within the meaning of subsection (a)) and who files a separate return maintains as his home a household which constitutes for more than one-half of the taxable year the principal place of abode of a child (within the meaning of section 152 (1)) with respect to whom such individual is entitled to a deduction for the taxable year under section 151 (or would be so entitled but for section 152 (e)),

(2) such individual furnishes over one-half of the cost of maintaining such household during the taxable year, and

(3) during the last 6 months of the taxable year, such individual's spouse is not a member of such household,such individual shall not be considered as married.

Edited February 6, 2011 by CarlosAndSveta

[EAbbas 213]

Please talk to your tax professionals and ask them how their advice to you to file single reconciles with this part of the Internal Revenue Code:

§ 7703. Determination of marital status

(a) General rule

For purposes of part V of subchapter B of chapter 1 and those provisions of this title which refer to this subsection

(1) the determination of whether an individual is married shall be made as of the close of his taxable year; except that if his spouse dies during his taxable year such determination shall be made as of the time of such death; and

(2) an individual legally separated from his spouse under a decree of divorce or of separate maintenance shall not be considered as married.

(b) Certain married individuals living apart

For purposes of those provisions of this title which refer to this subsection, if

(1) an individual who is married (within the meaning of subsection (a)) and who files a separate return maintains as his home a household which constitutes for more than one-half of the taxable year the principal place of abode of a child (within the meaning of section 152 (1)) with respect to whom such individual is entitled to a deduction for the taxable year under section 151 (or would be so entitled but for section 152 (e)),

(2) such individual furnishes over one-half of the cost of maintaining such household during the taxable year, and

(3) during the last 6 months of the taxable year, such individual's spouse is not a member of such household,such individual shall not be considered as married.

I also filed head of household however you have to be able to meet each and every criteria in this filing...your spouse didnt live with you the last 6 months of the year, you have dependants such as children or elderly no other person brings income into the house you must have paid for your housing etc yourself, and lastly, your dependants must have lived with you for more than half of the year... but the requirement is clear...you MUST MEET EACH OF THESE CRITERIA in order to file head of house hold...hope that helps...

Head of Household

You may be able to file as head of household if you meet all the following requirements.

You are unmarried or “considered unmarried” on the last day of the year.

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

A “qualifying person” lived with you in the home for more than half the year (except for temporary absences, such as school). However, if the “qualifying person” is your dependent parent, he or she does not have to live with you. See Special rule for parent , later, under Qualifying Person.

http://www.irs.gov/publications/p501/ar02.html#en_US_2010_publink1000220775

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 , 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 , 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 later in Children of divorced or separated parents or parents who live apart under Qualifying Child or in Support Test for Children of Divorced or Separated Parents or Parents Who Live Apart under Qualifying Relative. The general rules for claiming an exemption for a dependent are explained later under Exemptions for Dependents .

Edited February 6, 2011 by EAbbas

[Wayne and Claudia 40]

Doing what your tax professionals recommended is probably the most convenient thing for you to do but it does not mean it is the correct thing to do. I suggest you seriously consider what affect this might have on trying to bring your spouse to the U.S. If the USCIS finds out that you purposely filed an incorrect tax return just because it was more convenient for you then they might look at that as you and your spouse only wanting to obey U.S. law if you agree with it or it doesn't inconvenience you.

Tax professionals won't do what is convenient if it breaks the law. I have posted the irs regulation that allows a person to file single if they are married to a foreign spouse several times. There is nothing illegal about it since the irs regulations clearly allows it. My accountant filed me as single and now this year he will ammend that return to married and then file last years taxes as married since my wife now has her SSN.

[Val and Gary 29]

Tax professionals won't do what is convenient if it breaks the law. I have posted the irs regulation that allows a person to file single if they are married to a foreign spouse several times. There is nothing illegal about it since the irs regulations clearly allows it. My accountant filed me as single and now this year he will ammend that return to married and then file last years taxes as married since my wife now has her SSN.

It is illegal. Check your facts.

[Wayne and Claudia 40]

It is illegal. Check your facts.

They are not "my facts" but the facts of a certified public accountant who specializes in tax law.

[Val and Gary 29]

They are not "my facts" but the facts of a certified public accountant who specializes in tax law.

I must be wrong again then.

Edited February 7, 2011 by Val and Gary

[Wayne and Claudia 40]

I must be wrong again then.

I am not saying anyone is wrong, I am just stating what my accountant has told me and all he does is tax law. The truth is the tax code is so complex it is next to impossible for anyone to ever be claimed completely wrong or completely right.

[CarlosAndSveta 808]

Tax professionals won't do what is convenient if it breaks the law. I have posted the irs regulation that allows a person to file single if they are married to a foreign spouse several times. There is nothing illegal about it since the irs regulations clearly allows it. My accountant filed me as single and now this year he will ammend that return to married and then file last years taxes as married since my wife now has her SSN.

I am an IRS Agent and have been one for 32 years. Give me a citation for the regulation that says you can file as single when you are legally married and I will admit that I am wrong.

[Val and Gary 29]

I am an IRS Agent and have been one for 32 years. Give me a citation for the regulation that says you can file as single when you are legally married and I will admit that I am wrong.

You are correct Carlos. It is technically fraud to claim as a single person when you are married. A red flag audit could cause criminal proceedings to be brought. Even a cursory check around Google proves that fact.

Anyhow, it really isn't worth the bother. We have given OUR advice, it's up to the people out there to judge what is the CORRECT advice.

That really is the last I will say on this topic. It's hardly worth trying to help.

Edited February 7, 2011 by Val and Gary

[RICARDO4EVA2 194]

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 is a nonresident alien, you can choose to treat the nonresident as a U.S. resident. This includes situations in which one of you is a nonresident alien at the beginning of the tax year, but a resident alien at the end of the year, and the other is a nonresident alien at the end of the year.

If you make this choice, the following rules apply:

• You and your spouse are treated, for income tax purposes, as residents for all tax years that the choice is in effect
• You must file a joint income tax return for the year you make the choice
• Each spouse must report his or her entire worldwide income on the joint income tax return

source -

http://www.irs.gov/businesses/small/international/article/0,,id=96734,00.html

[Wayne and Claudia 40]

I am an IRS Agent and have been one for 32 years. Give me a citation for the regulation that says you can file as single when you are legally married and I will admit that I am wrong.

I am like Gary in that this topic has been beat up. I have posted the regulations and, standing firm to the last time I posted it, I won't post it again. If you care to know it, find it in my posts since this subject has gotten so old and boring.