Filing tax for the first time after getting my green card

[Ontarkie 14,219]

~~Moved to Tax & Finances During US Immigration, from Moving here and your New life~~

~~Also edited thread tittle to show tax not tex~~

[CarlosAndSveta 808]

P.S. I looked up Publication 519 again, but they only say we "should" attach a statement, not "need" or "must", and my interpretation is that it just makes it easier for IRS to know my situation. For example, when I was working as a F1 student, no tax was withheld from my paycheck. But after I became a resident alien, tax was withheld. But this is obvious by looking at my W2 information on my tax return, and I really don't see the point in attaching a statement. And it doesn't say anything about tax return being valid or invalid. If you saw something other than Publication 519, would you attach the link here, please? I don't intend to go against a rule. I just currently think it is not a mandatory rule to follow to attach a statement. Thanks for your contribution to this discussion!

This is an excerpt from Internal Revenue Code Section 6013:

(a) Joint returns

A husband and wife may make a single return jointly of income taxes under subtitle A, even though one of the spouses has neither gross income nor deductions, except as provided below:

(1) no joint return shall be made if either the husband or wife at any time during the taxable year is a nonresident alien;

Here is a link to where you can look at the Code Section yourself: http://www.law.cornell.edu/uscode/text/26/6013

[Coleman21 6]

Hi, thank you for your prompt reply. I was looking at the link you attached, and I found this:

Joint return, etc., for year in which nonresident alien becomes resident of United States

(1) In general

If—

(A) any individual is a nonresident alien individual at the beginning of any taxable year but is a resident of the United States at the close of such taxable year,

(B) at the close of such taxable year, such individual is married to a citizen or resident of the United States, and

© both individuals elect the benefits of this subsection at the time and in the manner prescribed by the Secretary by regulation,

then the individual referred to in subparagraph (A) shall be treated as a resident of the United States for purposes of chapter 1 for all of such taxable year, and for purposes of chapter 24 (relating to wage withholding) for payments of wages made during such taxable year.

What do they mean by "the secretary by regulation"? And by me filing online, do they treat me as if I broke a US law?

~~Moved to Tax & Finances During US Immigration, from Moving here and your New life~~

~~Also edited thread tittle to show tax not tex~~

Thank you for fixing my title!!! I had not been able to figure out how to fix it although some kind commenters told me how to do it. I appreciate it!

[CarlosAndSveta 808]

Hi, thank you for your prompt reply. I was looking at the link you attached, and I found this:

Joint return, etc., for year in which nonresident alien becomes resident of United States

(1) In general

If—

(A) any individual is a nonresident alien individual at the beginning of any taxable year but is a resident of the United States at the close of such taxable year,

(B) at the close of such taxable year, such individual is married to a citizen or resident of the United States, and

© both individuals elect the benefits of this subsection at the time and in the manner prescribed by the Secretary by regulation,

then the individual referred to in subparagraph (A) shall be treated as a resident of the United States for purposes of chapter 1 for all of such taxable year, and for purposes of chapter 24 (relating to wage withholding) for payments of wages made during such taxable year.

What do they mean by "the secretary by regulation"? And by me filing online, do they treat me as if I broke a US law?

Thank you for fixing my title!!! I had not been able to figure out how to fix it although some kind commenters told me how to do it. I appreciate it!

The Secretary of the Treasury issues regulations to hopefully clarify some of the language in the Internal Revenue Code. You didn't comply with the law by not attaching the election statement to your return. In most cases the worst that can happen is that you owe additional tax and maybe some interest and penalties. In your case you have nothing to worry about if you amend your return to include the election statement.

Here is the language from the applicable regulation regarding making the election to be treated as a resident alien for the whole year:

(4) Time and manner of making an election.

(i) A husband and wife shall make the election under this section by attaching a statement to a joint return for the first taxable year for which the election is to be in effect. The election must be made before the expiration of the period prescribed by section 6511(a) (or section 6511© if the period is extended by agreement) for making a claim for credit or refund. If either or both spouses die after the close of the taxable year but before the joint return is filed, the election may be made by the executor, administrator, or other person charged with the property of the deceased spouse. If the election is made with a joint amended return, the amended return should be made on Form 1040 or 1040A, the word “Amended” should be written clearly on the front of the return, and an amended return also must be filed for each subsequent taxable year as to which a return previously has been filed by either spouse.

(ii) The statement must contain a declaration that the election is being made and that the requirements of paragraph (a)(1) of this section are met for the taxable year. The statement must also contain the name, address, and taxpayer identifying number of each spouse. If the election is being made on behalf of a deceased spouse, the statement must contain the name and address of the executor, administrator, or other person making the election on behalf of the decreased spouse. The statement must be signed by both persons making the election.

Here is the link to the regulation: http://www.law.cornell.edu/cfr/text/26/1.6013-6#a_4

[Coleman21 6]

Thank you. Is there like a special form to write the statement, or do we just have to type it up and sign it? Also, how can I make an amendment? Do I just have to pick up 1040 form and whatever other form we need from a library and write "amendment" across each page? That was my impression when I read a bit about amendment before, but I want to make sure my understanding is correct. And do we have to pay money to file amendment?

I also would like to ask you if this statement thing applies to state tax return also. When I was filing tax online, it said that NY state requires us to file state tax online if we have internect access and have software. And I filed NY state tax as a part time resident of NY, because my husband and I lived in NY, then moved to GA, then moved back to NY last year (I know, it's crazy! But that's what we did.)

I appreciate your advice and help!

P.S. I know that I can print out the tax return I already filed online from the website I used to file tax. Can I just print it out and write amendment on the forms??

[CarlosAndSveta 808]

Thank you. Is there like a special form to write the statement, or do we just have to type it up and sign it? Also, how can I make an amendment? Do I just have to pick up 1040 form and whatever other form we need from a library and write "amendment" across each page? That was my impression when I read a bit about amendment before, but I want to make sure my understanding is correct. And do we have to pay money to file amendment?

I also would like to ask you if this statement thing applies to state tax return also. When I was filing tax online, it said that NY state requires us to file state tax online if we have internect access and have software. And I filed NY state tax as a part time resident of NY, because my husband and I lived in NY, then moved to GA, then moved back to NY last year (I know, it's crazy! But that's what we did.)

I appreciate your advice and help!

P.S. I know that I can print out the tax return I already filed online from the website I used to file tax. Can I just print it out and write amendment on the forms??

There is no IRS form for making the election. You will have to make one up using a wordprocessor and make sure that it contains all the elements listed in the regulation and both you and your spouse must sign it.

To amend your return you must use Form 1040X which you can download from the IRS website. In your case this will be very easy. You will complete the form using the information from the return that you filed. In Part III of the form you just need to explain that you forgot to include the resident alien election with your original return. Attach a copy of the return that you filed electronically but on the top margin of the copy write the word "Amended". Then just attach the election statement.

There are no fees to pay for filing an amended return. The only cost you should incur are the costs of the postage to mail the amended return to the IRS.

I can't help you with New York state taxes. I live in Texas which has no State income taxes.

Edited March 24, 2014 by CarlosAndSveta

[Coleman21 6]

Wow, thank you so much for such detailed explanation!! Is the amendment also due April 15th, 2014? So in Texas you don't have to file state tax?

There is no IRS form for making the election. You will have to make one up using a wordprocessor and make sure that it contains all the elements listed in the regulation and both you and your spouse must sign it.

To amend your return you must use Form 1040X which you can download from the IRS website. In your case this will be very easy. You will complete the form using the information from the return that you filed. In Part III of the form you just need to explain that you forgot to include the resident alien election with your original return. Attach a copy of the return that you filed electronically but on the top margin of the copy write the word "Amended". Then just attach the election statement.

There are no fees to pay for filing an amended return. The only cost you should incur are the costs of the postage to mail the amended return to the IRS.

I can't help you with New York state taxes. I live in Texas which has no State income taxes.

[CarlosAndSveta 808]

Wow, thank you so much for such detailed explanation!! Is the amendment also due April 15th, 2014? So in Texas you don't have to file state tax?

No, the amendment is not due by April 15th. You can take your time in filing it but I would not wait too long lest you forget it.

Texas doesn't have an income tax for individuals but we have to pay sales taxes and property taxes to the State and local governments.

[Coleman21 6]

Thank you very much!!!

[Coleman21 6]

Hey, it's been almost a year, and the tax season is coming again. So I did an amended return for tax year 2013, and I was wondering what this meant:

If the election is made with a joint amended return, the amended return should be made on Form 1040 or 1040A, the word “Amended” should be written clearly on the front of the return, and an amended return also must be filed for each subsequent taxable year as to which a return previously has been filed by either spouse.

I am very confused. For tax year 2014, do I have to send an amended return too??? But this year I was not a dual-status resident.

[PK and PK 13]

Call up the IRS help hotline. They have experts that will go over it in detail with you. From my own experience, they are more knowledgeable that most tax preparers out there and they cost nothing. We were in a similar situation like you and they helped us save thousands of dollars by filing correctly.

[Coleman21 6]

thank you for ur comment.

[Sean and Kristina 24]

Coleman21, you seem to be a year ahead of us in this process. We're currently in the process of filing our taxes using TaxSlayer.com and my husband is in the middle of his AOS from an F-1 visa. We have not filed yet, but wanted to ask you a few questions from your experience:

- Is there any possible way to include the election about residency electronically on TaxSlayer.com?

- Are we supposed to include the foreign income somewhere else on the 1040? Because as of right now when we only enter the foreign income in the "other income" area it is only listed in the exclusion 2555 form and simply subtracting the foreign income from my US income listed on line 7.

Example with fake numbers for ease of use:

W-2 reported income on line 7 = $50,000

Foreign income being excluded is $10,000

which leaves total taxable income to be $40,000.

This seems incorrect, but I do not know where else to include the foreign income since there is no W-2.

[Sean and Kristina 24]

I just chatted with a TaxSlayer representative and they said that I could print the documents and file via mail. So that helps!

[Coleman21 6]

Hi, Sean and Kristina! Thanks for reaching out to me.

Yes, you can print the documents and send by mail. There is no specific form to explain your choice to be treated as a resident, so just type it up and sign it, and send it with the printed documents. For your reference, what I actually did was filing online without any statement, and there was no issue. But I wasn't sure if it would complicate anything in the future, so I filed amendment after, and told them I had not understood the election statement, and I attached an election statement with the amendment and sent it by mail.

As for the foreign income, I never had to do it, so I'm sorry, I don't really know.. Try talking with TaxSlayer again, they might be able to help you again. Otherwise, you could ask other people here, or go to avvo.com and ask free legal questions there. Your question can be about immigration or tax or both!

I have a concern though.. you said that your husband is in the process of AOS, which means that he hasn't become a permanent resident yet, correct? In this case I am not sure if you could file jointly. When I was still an F-1 student, I had to file tax with the help of my college's international student office. My husband filed his tax separately. (Well, to be specific, he was on his mother's tax return when I filed my tax separately.) If your husband has already graduated or something, I think it is best to check with his college's international student office before filing tax. If my memory is correct, you can only elect to be treated as a resident if you became a permanent resident in the tax year, so even if your husband gets a green card tomorrow, I feel like he might have to file separately.

Sorry I'm not giving you definite answer! Just check about it, and if you guys can still file jointly, send everything by mail with the election statement. If you guys have to file separately, you don't have to worry about the election statement and you, the American citizen, can file online.

I just chatted with a TaxSlayer representative and they said that I could print the documents and file via mail. So that helps!