Tax Return and FOreign Spouse

[JRF 117]

Just a update guys,

Ok I just got of the phone with the IRS, and I am left so confused. I spoke to two different persons and they gave me two different set of information. The first guys I spoke to went through a questionnaire with me to determine if I qualify for a ITIN and after going through the questions he said I don't qualify because I am eligible for a Social Security Number in the future. He then went on to tell me that if order to apply for the ITIN I would need to speak to the Social Security Office and get a denial notice from them to attach to my ITIN application if I still choose to apply.

Then the next person I spoke to told me that I should not apply for a ITIN and that my hubby husband has to file his taxes as Married Filing Separately until I am in the US and get my Social Security number we amend the taxes then. He also went on to inform me that when you are married whether in the US or elsewhere you cannot under any circumstances file your tax return as Single.

What do you guys think should I try going ahead and applying for the ITIN because I am totally confused. My hubby will be applying for his citizenship in April and I don't want incorrect tax returns come back bite us then.

Wow...confusing. There are firms who are authorized by the IRS to process ITIN applications. If you are concerned you may want to reach out to them (I didn't go that route). Anyways, every case has it's complications so you probably should contact someone with more extensive experience at this sort of situation.

The only thing I agree with from the input you received from the IRS is that your husband cannot file single. If you read the US tax guide for aliens (link below) it would seem you qualify for the ITIN. That said I suggest you do a bit more research and consider having one of these firms I mention process the ITIN for you. By way of explanation what they do is certify your foreign residency by acting as an authorized agent for the IRS.

My story: My wife is a VN citizen, who has never been to the US - she is a non-resident alien spouse of a US citizen (I could be a LPR and everything would be the same). We were married on 22 Dec 2012. I did not have any problems with her ITIN application nor did I have any problems filing married/joint. I documented her income using a report from her company that showed income by employee gross, tax paid, deductions, and net pay. I highlighted her name on the report. It was a simple spreadsheet and not an official form with an official stamp. The most difficult part of the whole process was explaining the US tax system to my wife. Imagine that...

Good luck!

http://www.irs.gov/publications/p519/ch05.html#en_US_2012_publink1000222405

[Patra&Ricardo 4]

Wow...confusing. There are firms who are authorized by the IRS to process ITIN applications. If you are concerned you may want to reach out to them (I didn't go that route). Anyways, every case has it's complications so you probably should contact someone with more extensive experience at this sort of situation.

The only thing I agree with from the input you received from the IRS is that your husband cannot file single. If you read the US tax guide for aliens (link below) it would seem you qualify for the ITIN. That said I suggest you do a bit more research and consider having one of these firms I mention process the ITIN for you. By way of explanation what they do is certify your foreign residency by acting as an authorized agent for the IRS.

My story: My wife is a VN citizen, who has never been to the US - she is a non-resident alien spouse of a US citizen (I could be a LPR and everything would be the same). We were married on 22 Dec 2012. I did not have any problems with her ITIN application nor did I have any problems filing married/joint. I documented her income using a report from her company that showed income by employee gross, tax paid, deductions, and net pay. I highlighted her name on the report. It was a simple spreadsheet and not an official form with an official stamp. The most difficult part of the whole process was explaining the US tax system to my wife. Imagine that...

Good luck!

http://www.irs.gov/publications/p519/ch05.html#en_US_2012_publink1000222405

Thanks so much for your input JRF, I think I am definitely going to reach out to one of the authorized firms to help me out as I am all the way confused right now and need the extra guidance.

[NikLR 13,232]

Filing single was not a mistake. Its ok. Once you get your ITIN number, he can file an amended return as Married filing jointly and probably he should also get a refund. Remember that he should do this for State taxes as well, if there is a state income tax.

Getting an ITIN is taking a long time these days ( it can take even longer if applied from Jan to April which is peak time for IRS) and the IRS has strict guidelines now. Neverthless, if you submit the right paperwork or have a good accountant who specializes in this, you will be fine.

Actually it is a mistake. Anyone who is married should never file their taxes as single.

[iamwhatiam80 92]

Actually it is a mistake. Anyone who is married should never file their taxes as single.

Then what is the provision for people who are married and their spouse has no SSN or ITIN ? Married filing joint and separate both require that number.

My answer is specific to this case. I did not generalize.

[dwheels76 5,469]

Then what is the provision for people who are married and their spouse has no SSN or ITIN ? Married filing joint and separate both require that number.

My answer is specific to this case. I did not generalize.

I have yet to meet a tax preparer or IRS agent who even undersatnds or knows how Married filing seprate works. I been married since 2011 and have filed MFS no probem on Turbo Tax (actually this year I used TaxACT) You DO NOT have to use SS. However you can't file electronically. You print your filled out forms and mail in no issue.

You don't file anyway you wnat to get back mpore money. You file according to what you are illegally required to married seprarte or jointly.

Regardless where your spouse lives foreign or otherwise when you got married you are married and must file as such. It's that simple. Research VJ and see some of the couples who got grilled, put on AP until they amended their tax returns because their tax returns fiing sigle came under scrutiny.

Yes you may get by and your CO may not care but no matter its illegal for you to file single when you are not.

[dwheels76 5,469]

Just a update guys,

Ok I just got of the phone with the IRS, and I am left so confused. I spoke to two different persons and they gave me two different set of information. The first guys I spoke to went through a questionnaire with me to determine if I qualify for a ITIN and after going through the questions he said I don't qualify because I am eligible for a Social Security Number in the future. He then went on to tell me that if order to apply for the ITIN I would need to speak to the Social Security Office and get a denial notice from them to attach to my ITIN application if I still choose to apply.

Just fill out the W7. http://www.irs.gov/instructions/iw7/ch01.html look under who must apply. And you qualify.

Then the next person I spoke to told me that I should not apply for a ITIN and that my hubby husband has to file his taxes as Married Filing Separately until I am in the US and get my Social Security number we amend the taxes then. He also went on to inform me that when you are married whether in the US or elsewhere you cannot under any circumstances file your tax return as Single.

considering it takes so long to get the ITIN he might just do MFS and amend later its up to you which way. Its all about how close you are to getting here.

[iamwhatiam80 92]

I have yet to meet a tax preparer or IRS agent who even undersatnds or knows how Married filing seprate works. I been married since 2011 and have filed MFS no probem on Turbo Tax (actually this year I used TaxACT) You DO NOT have to use SS. However you can't file electronically. You print your filled out forms and mail in no issue.

You don't file anyway you wnat to get back mpore money. You file according to what you are illegally required to married seprarte or jointly.

Regardless where your spouse lives foreign or otherwise when you got married you are married and must file as such. It's that simple. Research VJ and see some of the couples who got grilled, put on AP until they amended their tax returns because their tax returns fiing sigle came under scrutiny.

Yes you may get by and your CO may not care but no matter its illegal for you to file single when you are not.

Thanks for sharing that dwheels76. I didnt knew that you could file MFS without the spouses SSN/ITIN

I filed single twice after my marriage but then my accountant ( new one), told me that you must amend your returns as married filing joint after he was able to get the ITIN for my wife. I did not have any issues with the IRS. I also hope i dont have any issues with the CO.

[dwheels76 5,469]

Thanks for sharing that dwheels76. I didnt knew that you could file MFS without the spouses SSN/ITIN

I filed single twice after my marriage but then my accountant ( new one), told me that you must amend your returns as married filing joint after he was able to get the ITIN for my wife. I did not have any issues with the IRS. I also hope i dont have any issues with the CO.

Don't worry about CO. Not like you were trying to be sneaky or anything. The intructions on filing is vague at best and the CO's know. Many of the cases I sighted i believe the CO was trying to just find any reason to deny or delay and that was one of the things knowing to amend would take months. For one it was over a two year delay.

I doubt it will come up. Personally knowing they are coming soon i would postpone the ITIN (that notarizing the passport at the embassy is a big headache I hear).

Didn't mean to alarm but just know you can file MFS. Just have to mail in after you do all the turbotax/Taxact fill in thats all.

[iamwhatiam80 92]

I doubt it will come up. Personally knowing they are coming soon i would postpone the ITIN (that notarizing the passport at the embassy is a big headache I hear).

Didn't mean to alarm but just know you can file MFS. Just have to mail in after you do all the turbotax/Taxact fill in thats all.

I hope this advice was not for me and i think it was for OP coz my spouse already has ITIN + i already have amended returns of MFJ.

[Patra&Ricardo 4]

Hey dwheels,

Thanks for your recommendation, I think I might just let him file as married filing separate and just amend once I am here. I am really hoping on being here by December 2014 if everything goes our way.

[CarlosAndSveta 808]

These filing status questions come up every year come filing season. Determining your filing status can be confusing but the IRS has an interactive tool that you can use to determine your filing status. If you answer the questions correctly you will be given the correct filing status. Here is the link:

http://www.irs.gov/uac/What-is-My-Filing-Status%3F

Just noticed that the assistant only covers up to 2012 but I don't think there have been any major changes to the tax law that would cause answering the questions for 2012 in determining your 2013 filing status to be incorrect. Hopefully they will update this interactive assistant soon.

Edited December 27, 2013 by CarlosAndSveta

[jdba 22]

These filing status questions come up every year come filing season. Determining your filing status can be confusing but the IRS has an interactive tool that you can use to determine your filing status. If you answer the questions correctly you will be given the correct filing status. Here is the link:

http://www.irs.gov/uac/What-is-My-Filing-Status%3F

Just noticed that the assistant only covers up to 2012 but I don't think there have been any major changes to the tax law that would cause answering the questions for 2012 in determining your 2013 filing status to be incorrect. Hopefully they will update this interactive assistant soon.

You can also file "head of Household" ( if you have children) and not claim your spouse. That is what the IRS told me to do when I called last year.

[CarlosAndSveta 808]

You can also file "head of Household" ( if you have children) and not claim your spouse. That is what the IRS told me to do when I called last year.

Did the interactive assistant give you a different answer than what the IRS representative told you?

[jdba 22]

Did the interactive assistant give you a different answer than what the IRS representative told you?

I was actually trying to find out about an ITIN number for my husband. After I listened forever and answered her questions she said he couldn't get one. I asked how I should file. She said since I didn't support him and he didn't support me and we have never lived together and he was outside the US. I could file single or head of household but I shouldn't put my husband because he didn't have an ITIN or SSN#. I have heard many people say that is wrong and maybe it is but that's what I was told. I filed head of house hold because that's how I filed before I was married. But I didn't put that I was married or add my husbands name to the form.

[NickD 203]

According to the IRS:

"Married persons. If you are considered married, you and your spouse can file a joint return or separate returns.

Considered married. You are considered married for the whole year if, on the last day of your tax year, you and your spouse meet any one of the following tests.

1. You are married and living together.

2. You are living together in a common law marriage recognized in the state where you now live or in the state where the common law marriage began.

3. You are married and living apart but not legally separated under a decree of divorce or separate maintenance.

4. You are separated under an interlocutory (not final) decree of divorce.

From http://www.irs.gov/publications/p501/ar02.html#en_US_2013_publink1000220714

You cannot claim a head of household status unless you are single and according to the above, to claim your spouse as an exemption, it doesn't make any difference whether your spouse is living with you or not. Those who did claim head of household while being married got into deep trouble.

Ha, may the comment after my divorce, didn't really affect my tax payments that much, head of household deductions are about the same as being married.

In my situation, my wife and stepdaughter were living with me and of course they didn't have an SS number, USCIS is playing around with us. But it didn't make any difference if my wife was living with me or not, still could claim her as an exemption. But living with me goes much easier with less explanation. A stepchild is a completely different story, they must be living with you before you can claim them as a dependent.

With the USCIS can either file a joint or separate return, but must also supply tax returns for your spouse. In our case, wife was not allowed to work while waiting for the USCIS, and would be stupid to file a separate return. I could then not claim her as an exemption and would be paying even more taxes.

But even when she did finally receive her conditional green card and SS number, it was far to our benefit to file a joint return, as a family we were paying less taxes, worked them out both ways. And going through that removal of conditions and US citizenship stages, was far easier to provide a joint return. Even made the comment if we paid more taxes when filing a joint return, will still do so to keep the USCIS happy. But wasn't even close to this. Would as a family pay a lot more taxes when filing separate returns.

Last year was the last time I could claim my stepdaughter as a dependent. While she was going to college with small part time jobs, she didn't even have to file income taxes. But we filed anyway to keep the USCIS happy, but she could not claim herself as a dependent. So this year with her on her own, I cannot claim her anymore that translates to us of having to pay an extra $1.75 per day in income taxes.

Ha, try and support a child on a $1.75 per day of less taxes to pay. Last year we laid out over $25,000 for her for living and college expenses so this year since we didn't, have to pay an extra 640 bucks in income taxes. Doesn't take a brain to figure out we are $24, 500.00 ahead.

Same with my son with a brand new grandson, thanks to Obamacare, is high deductible on his health insurance increased to $7,500 was an out of pocket expense for him. But since it is less than 10% of their gross income, cannot claim that expense on his tax return. But can claim a full $3,600 dependent deduction that will reduce his tax burden by something like around a measly 700 bucks. But he is paying a lot more than that for just diapers, so certainly not coming out ahead.

Just saying you cannot take deductions of dependents too seriously, IRS is out to screw us blind. Same with transportation expenses, with the drastic increases in automobile, insurance, and fuel cost that you won't earn a dime without it, can't claim that expense either.

But if you were a super rich guy with a $47 million dollar private jet, can claim 100% of those expenses, even though you are only using this for entertainment purposes. Its not fair, they can claim its part of their business expenses.