Married filing jointly during IR-1 process

[D2345 2]

From what I understand, it's possible (and legal) to file income taxes as "married filing jointly" together with a foreign spouse (non-resident alien with no SSN yet), if you get an ITIN number for them from the IRS, etc.

 

Is there any reason not to do this? Could it have any kind of negative impact on the IR-1 application process? Just double checking. Thanks.

 

We've already submitted Form I-130, but haven't got a response to that application yet. So that's where we're at in the process, if it makes any difference.

 

 

[Ryan H 3,818]

Moved from IR-1/CR-1 Process & Procedures to Tax & Finances During US Immigration forum.

[Duke & Marie 1,389]

1 hour ago, D2345 said:

From what I understand, it's possible (and legal) to file income taxes as "married filing jointly" together with a foreign spouse (non-resident alien with no SSN yet), if you get an ITIN number for them from the IRS, etc.

 

Is there any reason not to do this? Could it have any kind of negative impact on the IR-1 application process? Just double checking. Thanks.

 

We've already submitted Form I-130, but haven't got a response to that application yet. So that's where we're at in the process, if it makes any difference.

 

 

You can, but I found it a little hard because we both worked and the tax years of our countries didn’t line up (US is Jan 1 - Dec 31, Aus is July 1 - June 30) everything’s based on world wide income when filing jointly when the spouse is overseas.. plus I found certain income streams, interest on investments etc here in the US are taxable that we not necessarily taxable income in my home country.. plus lots of things that are deductible in my home country that aren’t here. so it didn’t pay for us to file jointly. All that in addition to complicating my filing of taxes back home.. 

 

we found it easier for my husband to file married filing seperate when I was back home in Aus, that way he still got the married perks without the headache that went with it.. but I guess it will depend on your situation and home country.. 

 

it’s not going to have an Impact on you IR1 either way... Just make sure he files married “something” (jointly or separately) or head of household if he has a dependent child.. he can’t file as single

Edited October 11, 2020 by Duke & Marie

[Wuozopo 4,293]

9 hours ago, D2345 said:

From what I understand, it's possible (and legal) to file income taxes as "married filing jointly" together with a foreign spouse (non-resident alien with no SSN yet), if you get an ITIN number for them from the IRS, etc.

 

Is there any reason not to do this? Could it have any kind of negative impact on the IR-1 application process? Just double checking. Thanks.

 

We've already submitted Form I-130, but haven't got a response to that application yet. So that's where we're at in the process, if it makes any difference.

 

 

One reason not to do this is the hassle getting the ITIN when the spouse is not present in the US. You apply for it concurrent with your next income tax filing (early 2021), sending a paper filing to Austin, TX. You will be mailing things back and forth for the spouse to sign (paper tax return, written statement electing for spouse to be treated as a resident alien for tax purposes, ITIN application form). You will need the spouse’s actual foreign passport to mail to Austin with the other things. Or you will have to find a certifying acceptance agent in the foreign country to certify the foreign passport. That is usually a large CPA firm, but not all countries have acceptance agents.

 

If you can jump those hurdles, then go for it. It is most beneficial when the foreign spouse doesn’t have complicated investment income, which would be taxable on your joint return. You could also amend the 2020 return after the spouse has a SSN to get the better tax break if there is one. 
 

List of countries with Acceptance Agents. Find one without an asterisk. Those with an asterisk can not certify.

https://www.irs.gov/individuals/international-taxpayers/acceptance-agent-program

 

[D2345 2]

On 10/11/2020 at 10:02 AM, Wuozopo said:

One reason not to do this is the hassle getting the ITIN when the spouse is not present in the US. You apply for it concurrent with your next income tax filing (early 2021), sending a paper filing to Austin, TX. You will be mailing things back and forth for the spouse to sign (paper tax return, written statement electing for spouse to be treated as a resident alien for tax purposes, ITIN application form). You will need the spouse’s actual foreign passport to mail to Austin with the other things. Or you will have to find a certifying acceptance agent in the foreign country to certify the foreign passport. That is usually a large CPA firm, but not all countries have acceptance agents.

 

If you can jump those hurdles, then go for it. It is most beneficial when the foreign spouse doesn’t have complicated investment income, which would be taxable on your joint return. You could also amend the 2020 return after the spouse has a SSN to get the better tax break if there is one. 
 

List of countries with Acceptance Agents. Find one without an asterisk. Those with an asterisk can not certify.

https://www.irs.gov/individuals/international-taxpayers/acceptance-agent-program

 

Thanks, but I'm a bit confused by that link in your post.

 

First of all, none of the countries in that list have an asterisk. Also, most countries in the world are missing from the list entirely, including my spouse's country.

 

Mailing her passport internationally seems a bit crazy.

[D2345 2]

I’m looking at the IRS page for applying for an ITIN, and it seems to indicate that you can do it with a certified copy from the issuing agency.

 

It says nothing about an acceptance agent being required.

 

https://www.irs.gov/individuals/how-do-i-apply-for-an-itin

 

I’ve attached a screenshot to this post.

 

The wording from the IRS seems to indicate that my wife could just get a copy of her national ID card from the civil office here and that would be good enough (since the copy is coming from the issuing agency itself).

 

Correct? Any clarification would be helpful.

 

Edited October 16, 2020 by D2345

[Wuozopo 4,293]

23 hours ago, D2345 said:

The wording from the IRS seems to indicate that my wife could just get a copy of her national ID card from the civil office here and that would be good enough (since the copy is coming from the issuing agency itself).

 

Correct? Any clarification would be helpful.

 
National identification card (must show photo, name, current address, date of birth, and expiration date)
Does her card have all of the above?If so, you will need more than just the one item. 

What else can you send as an original or certified copy?

Only a passport can be accepted alone, without additional items from the list.

 

A certified copy from the issuing agency means that the photocopy is certified in writing that it is an exact copy of their record. It will contain a seal or stamp from the civil office. And I suppose that certification might also need a translation. 
 

As I said earlier, it can be a major hassle to get an ITIN for a foreign spouse. May I ask your primary reason for insistence on filing a joint return?

 

 

[Just Paul 4,595]

Acceptance agent is the easiest way.   Make sure there isn't an office of the Big 5 firms at the top of the sheet in your wife's country.   The IRS list isn;t always up to date.

 

I've seen people do a certified copy of the passport bio page and id cards.

 

Sending the passport isn't too risky from within the US.   I have had people do that a few times. 

 

If you aren't in rush, and money isn't that important, you can file MFS and then amend the return later.

 

We did an acceptance agent - in Hong Kong while on a side trip.

Edited October 21, 2020 by Paul & Mary

[fjxs 133]

One reason not to do it is that if your spouse has any kinds of foreign investments, pensions, life insurance, trusts, retirement funds, education savings plans, etc, even very small ones, the rules can be incredibly complicated and even impossible to follow correctly. The US has very complex tax rules for foreign investments (including even very small mutual funds and ETFs) and what they consider to be foreign trusts, and they don't actually have a lot of information clarifying what exactly counts and doesn't count. There are no dollar limits, so if you have even $100 in one of those, you can have complicated filing requirements. The trust forms actually have a $10,000 fine for failing to file or filing incorrectly, even if the trust itself is only worth $100 or $500 or whatever. And there is some confusion over what a "trust" is that hasn't been clarified, so some people file the forms for things that you wouldn't normally consider a trust, just to be safe. 

 

Also, just regular taxes can be confusing to file if you have any income at all, since the deductions & tax rules & tax slips are different in other countries. It can be hard to translate the foreign income information into something you can easily put into US taxes. And you will have to pay US taxes on the foreign spouses income. 

 

If you are going to do married filing jointly, you have to formally elect to do it on the first year, in writing, and then both spouses have to continue to file US tax returns until the decision is revoked. It is a one-time only decision. So another reason people choose not to do it is it can be beneficial to have one spouse who doesn't have to file US taxes (so, for example, foreign investments can be in their name without having to worry about US tax implications). If your plan is to live in the US, that won't really matter though. 

 

If you are planning on doing it, unless the foreign spouse has no income, investments, life insurance, retirement funds, etc, at all, I would recommend getting a professional to do your taxes - someone with experience in this area.

[top_secret 2,462]

Assuming there is a convenient acceptance agent, and my soon to be spouse is a college student and has no income, this kind of looks like it 'might' be beneficial in our situation.  But what if their is a step-child also being petitioned with her mother?  Does the child need and ITIN and then get elected as a dependent as if they were on shore?  How does that work?

[seekingthetruth 1,248]

On 11/20/2020 at 10:22 AM, top_secret said:

Assuming there is a convenient acceptance agent, and my soon to be spouse is a college student and has no income, this kind of looks like it 'might' be beneficial in our situation.  But what if their is a step-child also being petitioned with her mother?  Does the child need and ITIN and then get elected as a dependent as if they were on shore?  How does that work?

Yes, you would save a lot on taxes.  She has to be your wife to get the Itin.  I used the agent at RAO in Angeles City.  I think there are only 1 or 2 in the Philippines. 

 

There is a downside to watch out for though.  Any taxpayer using a spousal Itin did not get a stimulus payment.  That was me.  Not sure if they will change that rule.

 

The step children can't be used on taxes until they get SSN.