Married filing jointly, non-resident spouse

[Russ&Caro 1,549]

Hello, having finally received a social security # for my wife, I was in a rush to file my 2014 fed and state tax returns, from which I should receive a sizable refund because my withholdings for the year were quite high. My wife and I were married in Feb 2014, so we do qualify to file jointly even though she was a non-resident throughout the remainder of the year as we waited for our CR-1 application to process. I sent my returns yesterday, but today in doing some research, I uncovered this IRS directive. I seem to recall reading the first part of it, pasted below. But what I either missed or forgot was the 2nd part where they outline "How to Make the Choice", which includes submitting a signed declaration with the return.

Should I file an amended return with the signed declaration, immediately? Thanks in advance for any advice.

Nonresident Spouse Treated as a Resident

If, at the end of your tax year, you are a U.S. citizen or a resident alien (even if you were NOT for the whole year) and married to a nonresident alien, you can choose to treat your nonresident spouse as a U.S. resident for U.S. Federal Individual Income Tax purposes.

If you make the choice for your nonresident spouse to be treated as U.S. resident in a particular tax year:

• You and your spouse are treated as residents for that 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, you may still be treated as a nonresident alien for other U.S. withholding taxes such as (1) Chapter 3 withholding or (2) Social Security and Medicare tax withholding. Refer to Aliens Employed in the U.S. – Social Security Taxes.
• 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).
• For the year to make the choice, you and your spouse are both taxed on worldwide income.
• Generally, neither you nor your spouse can claim tax treaty benefits as a resident of your foreign spouse’s country for the tax year for which the choice is in effect. However, there may be exceptions on certain tax treaties that allow a resident alien to claim a tax treaty benefit on certain specified income.

CAUTION! If you file a joint return under this provision, the special instructions and restrictions for dual-status taxpayers do not apply to you.

How to Make the Choice

Attach a statement, signed by both spouses, to your joint return for the first tax year for which the choice applies. It should contain the following information:

1. A declaration that one spouse was a nonresident alien and the other spouse a U.S. citizen or resident alien on the last day of your tax year, and that you choose to be treated as U.S. residents for the entire tax year
2. The name, address, and identification number of each spouse. (If one spouse died, include the name and address of the person making the choice for the deceased spouse.)

[Amhara 460]

If she has her green card, she is a resident alien. This is only applicable if she does not have a green card. Based on your timeline, I think the resident alien rules apply to her, which means that you don't need to take any action.

But see if any others agree or disagree with me.

[Nich-Nick 3,354]

Hello, having finally received a social security # for my wife, I was in a rush to file my 2014 fed and state tax returns, from which I should receive a sizable refund because my withholdings for the year were quite high. My wife and I were married in Feb 2014, so we do qualify to file jointly even though she was a non-resident throughout the remainder of the year as we waited for our CR-1 application to process. I sent my returns yesterday, but today in doing some research, I uncovered this IRS directive. I seem to recall reading the first part of it, pasted below. But what I either missed or forgot was the 2nd part where they outline "How to Make the Choice", which includes submitting a signed declaration with the return.

Should I file an amended return with the signed declaration, immediately? Thanks in advance for any advice.

If you were married in the year 2014 and you have an ITIN or SSN for your spouse, then you can file a 2014 joint return. It doesn't matter where she lived or her immigration status (in 2014) because you each will sign the statement saying you choose for her to be treated as a resident alien for tax purposes.

If she had income in her country, you must report it as income when you file jointly. It will be in Line 7 on a 1040 added to your income. Then you use Form 2555EZ Foreign Income Exclusion to exclude it and subtract it out on the 1040. Shown as a negative number on Line 21.

You filed Married Filing Separately. When you work out a Married Filing Jointly return, your refund will be bigger.

[Amhara 460]

If you were married in the year 2014 and you have an ITIN or SSN for your spouse, then you can file a 2014 joint return. It doesn't matter where she lived or her immigration status (in 2014) because you each will sign the statement saying you choose for her to be treated as a resident alien for tax purposes.

I think the immigration status does matter. If she is LPR, they don't need to sign a statement - she is already a resident alien for tax purposes. If she is not an LPR, then they need the statement to elect to treat her as a resident alien for tax purposes.

[Nich-Nick 3,354]

I think the immigration status does matter. If she is LPR, they don't need to sign a statement - she is already a resident alien for tax purposes. If she is not an LPR, then they need the statement to elect to treat her as a resident alien for tax purposes.

I was answering to the Op's situation specifically.

He was asking about tax year 2014.

He was married in 2014.

His wife did not get a visa or enter the U.S. until last month-- July 2015.

She was not an LPR for 2014 tax year, but her status does not matter for 2014 because they can sign a statement for her to be resident alien for tax purposes even if she had never stepped foot in the U.S. that tax year.

I agree an LPR is a resident alien and does not need to request resident alien treatment. But in 2014 she was not resident and not an LPR.

[Russ&Caro 1,549]

Thank you to all who replied. I really appreciate your advice/perspective.

In the end, I submitted an amended return with the declaration, as I had forgotten a required form involving a credit. I was surprised at the significant difference that married jointly made on my taxes. Unfortunately, I wasn't able to take advantage of it immediately because the IRS rejected our application for an ITIN and we had to wait for the SSN, which only came last week.

[Amhara 460]

I was answering to the Op's situation specifically.

He was asking about tax year 2014.

He was married in 2014.

His wife did not get a visa or enter the U.S. until last month-- July 2015.

She was not an LPR for 2014 tax year, but her status does not matter for 2014 because they can sign a statement for her to be resident alien for tax purposes even if she had never stepped foot in the U.S. that tax year.

I agree an LPR is a resident alien and does not need to request resident alien treatment. But in 2014 she was not resident and not an LPR.

2014....doink! I agree.

Yeah, MFJ is typically more tax-advantaged. I'm sure waiting for my MFJ this year! And my guy is going to be taking classes too! That's what I am talking about!

Edited August 21, 2015 by Amhara

[Russ&Caro 1,549]

Yeah, I've noticed the direct write off of tuition. That will be nice when we eventually take advantage of it. We were pleasantly surprised when we discovered that the local community college offers 7 levels of english (as a 2nd language) for free. Just a $25 registration fee each semester. My wife is going to work on her english for about a year and then take courses to get certified as a nurse here in the states.

[Amhara 460]

Yeah, I've noticed the direct write off of tuition. That will be nice when we eventually take advantage of it. We were pleasantly surprised when we discovered that the local community college offers 7 levels of English (as a 2nd language) for free. Just a $25 registration fee each semester. My wife is going to work on her English for about a year and then take courses to get certified as a nurse here in the states.

Awesome! That's a great career for her! She can take that anywhere. Tuition can be used as a tax credit - it's not really a direct write off of taxes. There is also a deduction before adjusted gross income, but that one is not so beneficial to most individuals.

Look into your community college's residency requirements. I was hoping that we might be able to get my guy registered at the in-county rate since I've lived at the same address for nearly three years; however, I don't think that will be the case. Your's might be different, but if we were married for at least a year, then we could use our marriage to count him as in-district even if he was out of the country waiting on the visa. I am thinking that we can only afford about $1,000 for tuition and that should cover 4-6 classes, but with out-of-state rates, that will only cover two classes.

May your marriage have a long, long, and enjoyable journey!!!!

[Chejemmie 7]

Similar situation- I am on F1 status and I have an ssn as I work on campus. Husband is a permanent resident. We were married in 2014 and filed MFJ for that year. We used turbo tax and only saw the instructions to attach a note after the fact. What should we do? Our case was just transferred from Vermont to California.

Edited August 28, 2015 by Chejemmie

[cyclone27 710]

Will be doing much the same once my wife gets over her - just file an amended tax return once she arrives and receives her ssn then include her income for 2014. Then we are golden.

[Thozelle 16]

Will be doing much the same once my wife gets over her - just file an amended tax return once she arrives and receives her ssn then include her income for 2014. Then we are golden.

We went the long way with the ITIN. Started the paperwork in May and will finally be getting the refund for the 2013 ammended return this week. Already got the 2014 refund and used that transcript for the AOS.

[tidius 6]

Thank you to all who replied. I really appreciate your advice/perspective.

In the end, I submitted an amended return with the declaration, as I had forgotten a required form involving a credit. I was surprised at the significant difference that married jointly made on my taxes. Unfortunately, I wasn't able to take advantage of it immediately because the IRS rejected our application for an ITIN and we had to wait for the SSN, which only came last week.

Hi,

This is precisely the tread I was looking for. I arrived on a K-1 (fiancé) visa in October 2015, got married and my wife filed MFJ early in 2016 but we forgot to include the statement/declaration for me to be treated as an alien resident (since I applied for my green card but haven't received it yet). Should we send an amended tax return (even if the actual values on the form will remain the same) and attach the statement or will the IRS raise a flag and get in touch and ask us to send it later?

Thanks!

[MariaR323 199]

Hi,

This is precisely the tread I was looking for. I arrived on a K-1 (fiancé) visa in October 2015, got married and my wife filed MFJ early in 2016 but we forgot to include the statement/declaration for me to be treated as an alien resident (since I applied for my green card but haven't received it yet). Should we send an amended tax return (even if the actual values on the form will remain the same) and attach the statement or will the IRS raise a flag and get in touch and ask us to send it later?

Thanks!

I would go ahead and send in the election statement because you wouldn't want something like this to come back to you in the future. Possible consequences are they deny the election and tack on interest to the extra monies that were refunded and you'll have to pay back even more.