Down to the wire and confused!

[Lety and Ed 2]

Hello VJ Friends,

After successfully entering the U.S. and getting married, we are now in the AOS process and waiting. Of course the inevitable taxes happen and now we have some questions.

First the facts…

1. I am a U.S. Citizen.

2. My wife departed Mexico and entered the U.S. on a K1 in August 2013. My stepson also entered on K2 at the same time.

3. After she entered on the K1 we got married in the U.S. in August 2013.

4. Both my wife and my stepson have SSNs.

5. Prior to arriving in the U.S. my wife worked in Mexico from January 1, 2013 to July 2013.

6. We have no record of her pay from her job in Mexico but we can probably approximate her pay from January through July 2013.

7. She has not worked in the U.S.

8. Even though she worked in Mexico, I provided the primary support for her and my stepson in Mexico from January 1, 2013 to August 2013.

9. I continue to be the primary breadwinner and support all of us in the U.S.

Here are my questions…

1. Even though my wife was only in the U.S. for the last 5 months of the year can we elect for her to be treated as Resident Alien?

2. If we elect for her to be treated as Resident Alien then we would file a 1040 and NOT 1040NR. Is this correct?

3. I believe we can file Married Filing Jointly or Married Filing Separately, but I also realize that we are most likely better off to file Married Filing Jointly. If we file jointly, can we claim our son as a dependent?

4. If we file jointly then we would claim a foreign earned income exclusion. Is this correct?

5. Would we use form 2555EZ or 2555. I don’t understand how you choose which to use?

6. Since we don’t have any record of her pay can we just estimate as close as possible what her pay was for 2013? Do we have to provide any special form or statement for this or is the information on the 2555EZ or 2555 suffient?

Best Regards,

Lety and Ed

[Jo Së 200]

I don't really know all the answers as far what forms and all that, but why would you report income she made in a country that she is a citizen of to a country that she isn't a citizen of? She paid her taxes in that country already.

[CarlosAndSveta 808]

Here are my questions…

1. Even though my wife was only in the U.S. for the last 5 months of the year can we elect for her to be treated as Resident Alien?

Yes, you can elect to have your wife treated as a Resident Alien for the whole year.

2. If we elect for her to be treated as Resident Alien then we would file a 1040 and NOT 1040NR. Is this correct?

Yes.

3. I believe we can file Married Filing Jointly or Married Filing Separately, but I also realize that we are most likely better off to file Married Filing Jointly. If we file jointly, can we claim our son as a dependent?

Yes, since the child was a resident of Mexico. Normally nonresident children can't be claimed as dependents. The exceptions are children from Mexico and Canada.

4. If we file jointly then we would claim a foreign earned income exclusion. Is this correct?

Yes, your wife can claim the exclusion.

5. Would we use form 2555EZ or 2555. I don’t understand how you choose which to use?

The main difference between the two forms is that on the 2555EZ you can only claim the foreign earned income exclusion. On the Form 2555 you can also claim the housing exclusion or deduction. In your case you can use the Form 2555EZ.

6. Since we don’t have any record of her pay can we just estimate as close as possible what her pay was for 2013? Do we have to provide any special form or statement for this or is the information on the 2555EZ or 2555 suffient?

Just estimate as best as possible. You don't have to include any special forms or statements explaining how you arrived at the foreign earned income amount.

Edited April 10, 2014 by CarlosAndSveta

[CarlosAndSveta 808]

I don't really know all the answers as far what forms and all that, but why would you report income she made in a country that she is a citizen of to a country that she isn't a citizen of? She paid her taxes in that country already.

He is doing it because he wants to file a joint return with his wife. Since his wife was a nonresident alien at the end of 2013 the only way they can file a joint return is if they both elect to treat his wife as a resident alien for the whole year. Like U.S. citizens, resident aliens are taxed on their worldwide income. In their case they will avoid double taxation of the wife's wages by claiming the foreign earned income exclusion.

[Lety and Ed 2]

CarlosAndSveta,

Thank you for all of the excellent information, We are feeling better about all of this now.

Best Regards,

Lety and Ed

He is doing it because he wants to file a joint return with his wife. Since his wife was a nonresident alien at the end of 2013 the only way they can file a joint return is if they both elect to treat his wife as a resident alien for the whole year. Like U.S. citizens, resident aliens are taxed on their worldwide income. In their case they will avoid double taxation of the wife's wages by claiming the foreign earned income exclusion.

Exactly and very clearly explained. Thank you.