Taxes and Substantial Presence

[Odair 1]

I have been searching all over for an answer, but I'm not having much luck. It doesn't help that up until this year I've only had to fill out the very simple tax form..

Anyhow, here's our story:

My husband and I married last year in November and filed for AOS towards the end of December. So, at the end of 2013, he was a nonresident alien.

HOWEVER, according to this, I think he meets the substantial presence test to be counted as a resident for the tax year of 2013, based on the time he was in the US last year between our two visits (187 days total in 2013 alone):

You will be considered a U.S. resident for tax purposes if you meet the substantial presence test for the calendar year. To meet this test, you must be physically present in the United States on at least:

31 days during the current year, and

183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:

All the days you were present in the current year, and

1/3 of the days you were present in the first year before the current year, and

1/6 of the days you were present in the second year before the current year.

As of March 7, he is a permanent resident, and we have his social security number. So, my questions are:

- Do we still have to write the letter asking for him to be treated as a resident for the previous year?

- Do we need to send in any proof that he passed the substantial presence test?

- We can use his SSN on our tax form and file jointly, yes?

I'm sorry for asking what may be obvious questions, but tax laws are very intimidating. More so than immigration, if you ask me. This is not something I want to mess up, so I want to make sure I really understand it.

[CarlosAndSveta 808]

- Do we still have to write the letter asking for him to be treated as a resident for the previous year?

You must include the statement electing to treat him as a resident alien if you want to file a joint return. A nonresident alien cannot file a joint return without the election.

- Do we need to send in any proof that he passed the substantial presence test?

No.

- We can use his SSN on our tax form and file jointly, yes?

Yes, you can use his SSN on the tax return. You can file jointly only if you include the election statement to treat him as a resident alien on your joint return. By making this election you will have to send in a paper return by mail.

[Odair 1]

I'm confused. Then what is the point of the substantial presence test counting him a resident last year if we still have to write a letter saying we want him to be treated as a resident?

[CarlosAndSveta 808]

I'm confused. Then what is the point of the substantial presence test counting him a resident last year if we still have to write a letter saying we want him to be treated as a resident?

You have to make the election because he was not a resident alien for the whole year. For 2013 your husband was a dual-status taxpayer. The law is very clear that a person cannot join in filing a joint tax return if he was a non-resident alien during any part of the tax year. That is why you need to make the election in order to file a joint tax return.

Edited April 3, 2014 by CarlosAndSveta