Filing joint income tax after marrying a Canadian in the US

[Ash&Dave 2]

Hi guys,

I'm a 2nd year resident and made only around $43,000 last year, I was about to file the taxes this year (under the married filing separate) option and saw a refund of only $30.00. My husband (who's from Canada) but has lived in the US for about 10 years prior to moving back to Canada in 2009 does have a valid SS number and has filed taxes before in the US.

The question that I have here is that Can we still file a joint return this year (with his income being zero for 2011) as he has just received the EAD last week. We haven't filed it yet, but we tried doing it jointly my refund went up to about $900.00.

I have been reading on IRS's website and I don't see any problem in us filing together, but I just thought I'd ask here hoping that some of you are in a similar situation and can perhaps share your experiences.

Thanks in advance for your help.

Ashley

[Harpa Timsah 13,258]

Were you married in 2011? Did he work at all in 2011? When did he arrive in the US?

[Ash&Dave 2]

Were you married in 2011? Did he work at all in 2011? When did he arrive in the US?

We got married in Nov 2011 (he arrived in Nov 2011 as well). We didn't file for AOS until Feb 2012 though. He worked in Canada in 2011 (but not in the US).

Thanks

[ceadsearc 516]

He can be counted as a resident for tax purposes if you were married in 2011 but you will have to include his Canadian income. If he paid taxes on it in Canada he MIGHT not be taxed on it again.

[Aur0ra 7]

Hi,

I immigrated on a K1 in Oct 2011. I worked in Canada until that time and did not earn any USA income during 2011. I filed a tax return for both countries. I had a choice in 2011 to file either separately from my husband as a dual-status alien or file jointly with him as a resident for the entire year. You can only do dual-status once in the year you immigrate. I chose to do dual-status for 2011 in order to keep things simple and not pay tax in both countries. Mind you the tax treaty is pretty decent and chances are if you pay tax in Canada there isn't any leftover for the USA anyway. But I also got a cross-border accountant who deals with this stuff on an ongoing basis.

Hope that helps...

[kcoyclay1 98]

You may file married filing jointly with his income being zero for 2011. He was not a resident and just got his EAD, his Canadian income is only reported based on his US residence, and as stated, he is in the process.

Remember that the deadline is tomorrow. If you are not going to file by then, you need to request an extension. However, I do not know if there's a valid reason for one seeing that he has his SS.

If he were K1 during that time, my explanation may be incorrect. Check it out.

Edited April 16, 2012 by kcoyclay1

[aaron2020 11,651]

You may file married filing jointly with his income being zero for 2011. He was not a resident and just got his EAD, his Canadian income is only reported based on his US residence, and as stated, he is in the process. Absolutely wrong.

Remember that the deadline is tomorrow. If you are not going to file by then, you need to request an extension. However, I do not know if there's a valid reason for one seeing that he has his SS.

If he were K1 during that time, my explanation may be incorrect. Check it out.

For 2011, the husband was not an LPR and therefore his income is not subject to US taxation. Being in the US on a non-immigrant K-1 visa does not subject him to US taxation either because a non-immigrant is not a US resident.

If he wants to file a joint US tax return with his wife, he does not list his income as zero. Essentially, he is volunteering to be taxed as a US resident. His income must be included on the joint tax return. He will also qualify for the Foreign Earned Income Exclusion. His unearned income will be subject to US taxation.

If he doesn't want his Canadian income subject to US taxation, then he does not need to volunteer to be a US taxpayer. His wife can file as married filing separately.

P.S. No one needs a "valid reason" to file for an extension. Anyone can file for an extension. A person who files for an extension has until Oct. 15, 2012, to file. However, tax payments are due on April 17th. An extension does not allow a person to extend the time to send in the government's money to them. An extension is pay now and file paperwork later.

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

U.S. Citizens and Resident Aliens Abroad - Nonresident Alien Spouse

Election to File Joint Return

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, and

Each spouse must report his or her entire worldwide income on the joint income tax return

If you make this choice, you and your spouse are treated as residents for your entire tax year for the purpose of your federal individual income tax return, and for the purpose of withholding U.S. federal income tax from your wages.

However for the purpose of Chapter 3 withholding, you may still be treated as a nonresident alien. Refer to Withholding of Tax on Nonresident Aliens and Foreign Corporations (Chapter 3 of the IRC) in Tax Withholding Types.

In addition, you may still be treated as a nonresident alien for the purpose of withholding Social Security and Medicare tax. Refer to Aliens Employed in the U.S. – Social Security Taxes.

Generally, neither you nor your spouse can claim tax treaty benefits as a resident of a foreign country for a tax year for which the choice is in effect and you are both taxed on worldwide income. However, the exception to the saving clause of a particular tax treaty might allow a resident alien to claim a tax treaty benefit on certain specified income. You must file a joint income tax return for the year you make the choice, but you and your spouse can file joint or separate returns in later years.

Example:

Pat Smith has been a US citizen for many years. She is married to Norman, a nonresident alien. Pat and Norman make the choice to treat Norman as a resident alien by attaching a statement to their joint return. Pat and Norman must report their worldwide income for the year they make the choice and for all later years unless, the choice is ended or suspended. Although Pat and Norman must file a joint return for the year they make the choice, as long as one spouse is a US citizen or resident, they can file either joint or separate returns for later years.

Edited April 16, 2012 by aaron2020