Married on Dec 31, do we qualify for joint tax return?

[Wuozopo 4,293]

21 hours ago, ToddnElvia said:

 My fiance and I married on Dec 31, 2021, meeting the IRS's guidelines on married filing a joint return....but, my wife does not have an SSN yet or tax id, are we eligible to file as a married couple and if so what steps do we need to follow? Thanks

Can you update your timeline with date visa received, date entered US, date married, and date AOS/EAD/AP were filed (if applicable).

[Mike E 11,742]

2 hours ago, Crazy Cat said:

How does that "SSN applied for" work?  I have not seen that in any IRS reg.  Will the IRS process such a return as a joint filing?  

I looked without success for the IRS policy on this.  I did find a related policy for people who want to list their dependents on their tax returns but don’t have an SSN.  The process is similar.  
 

I did however confirm that if you have a pending SSN application you are not allowed to have an ITIN.  So if you’ve filed for I-765 and checked the SSN box, no ITIN for you.  

[Wuozopo 4,293]

On 1/8/2022 at 11:55 AM, JeanneAdil said:

new rule states that if she is eligible for ss # she cannot do ITIN

file the forms requesting USCIS to do the SS work and fill out tax forms leaving the SS # blank

include a copy of the EAD (I 765)  form where u marked the box for USCIS to do the SS work

then your returns are not held up 

 

No one should have both an ITIN and a SSN at the same time. For example, if a SSN application is pending, an ITIN will not be issued even if the individual completes and submits a Form W-7.

 

6 hours ago, Mike E said:

 

I did however confirm that if you have a pending SSN application you are not allowed to have an ITIN.  So if you’ve filed for I-765 and checked the SSN box, no ITIN for you.  

I don’t agree with the above. She does not have a SSN at this time and there is no way she can get one right now and not likely to have one or be eligible at the end of the month when filing opens. She is a K1 non-resident alien, presumably past her 76 day eligibility, with no guarantee of getting approved for EAD or AOS. She has no SSN pending. She can apply for an ITIN up until the time she is approved for EAD, at which time she qualifies for a SSN. 

 

 

@ToddnElvia If you would update your timeline we wouldn’t  have guess on how many days she’s been in the US and if you have filed for Adjustment of Status yet. 

[Mike E 11,742]

8 hours ago, Wuozopo said:

 

I don’t agree with the above. She does not have a SSN at this time and there is no way she can get one right now and not likely to have one or be eligible at the end of the month when filing opens. She is a K1 non-resident alien, presumably past her 76 day eligibility, with no guarantee of getting approved for EAD or AOS. She has no SSN pending. She can apply for an ITIN up until the time she is approved for EAD, at which time she qualifies for a SSN. 

 

 

@ToddnElvia

As I wrote if you a  have a pending SSN application you cannot get an ITIN. @JeanneAdil is 100 percent correct on that (based on what the IRS has published).  
 

It’s  disappointing how IRS, SSA, DoS, and USCIS all  dropped the ball during the pandemic while those in the rest of world not only had to carry on but had to work harder.   

[Wuozopo 4,293]

5 hours ago, Mike E said:

As I wrote if you a  have a pending SSN application you cannot get an ITIN. @JeanneAdil is 100 percent correct on that (based on what the IRS has published).  
 

It’s  disappointing how IRS, SSA, DoS, and USCIS all  dropped the ball during the pandemic while those in the rest of world not only had to carry on but had to work harder.   

Thanks for your reply.  Will you post the IRS links for the above referenced information. I always like to read it from the source. 
 

And this is just my opinion: I still don’t agree that this situation is a “pending” SSA application at this moment in time. The work permit is yet to be approved (or maybe not filed). The EAD application is with USCIS who can’t issue a SSN. Once  USCIS approves, they pass the info on to SSA as a courtesy. When SSA gets it, I would go along with “pending”.  I guess the difference in our thoughts are you think the SSA already has the SSN application. This link https://www.uscis.gov/sites/default/files/document/flyers/EBE_Flyer_Apply_for_your_Social_Security_Number_While_Applying_for_Your.pdf  says:

 

If USCIS approves your application to work in the U.S. and you completed the section on the application to request an SSN card, then USCIS will send SSA the data we need to issue your SSN card.

 

I  think a pending application would be more generally be the individual who was eligible for a SSN, went to a SSA office with their ID, SS-5, I-94, birth certificate, etc. The SSA has to check eligibility and stuff so it is pending. It wouldn’t be appropriate to file with IRS for an ITIN when SSA already has your application.

 

 

 

[Mike E 11,742]

1 hour ago, Wuozopo said:

Thanks for your reply.  Will you post the IRS links for the above referenced information. I always like to read it from the source. 

https://www.irs.gov/pub/irs-pdf/p1915.pdf

 

If you have an application for a SSN pending, do not file Form W-7/W- 7(SP). 

 

 

 

[Merica-n 65]

5 hours ago, Mike E said:

If you have an application for a SSN pending, do not file Form W-7/W- 7(SP). 

When I read this, I immediately ask the question, is filing an I-765 considered filing an application for an SSN. So I searched for this and was greeted with this information from the USCIS, which seems to imply that you are applying for an SSN.

 

Quote

To save you a trip to the Social Security Office you can now apply for your SSN and card (SSN card) on the same application form you will use to apply for permission to work legally in the United States (U.S.).

 

Quote

If USCIS approves your application to work in the U.S. and you completed the section on the application to request an SSN card, then USCIS will send SSA the data we need to issue your SSN card.

Source: https://www.uscis.gov/sites/default/files/document/flyers/EBE_Flyer_Apply_for_your_Social_Security_Number_While_Applying_for_Your.pdf

 

I've also previously searched for applied for a social security number and IRS and found the following guidance.  

 

Quote

The IRS is quite aware of the potential delays in securing an SSN which these procedures may cause some aliens. Furthermore, in the situation in which an alien is work-authorized under the immigration law and has met the Social Security Administration's evidence requirements for an SSN, but who is experiencing delays in securing an SSN caused by the SSA's procedures, the IRS will not generally issue an ITIN (Individual Taxpayer Identification Number) to such an alien.

 

With respect to IRS penalties related to the payer's failure to furnish a payee TIN on an information return and on a payee statement, the fact that the payer does not have a payee TIN to report solely because the SSA is delaying an issuance of an SSN, or cannot issue an SSN, to a work-authorized alien because of its procedures, will cause the IRS to be quite favorable toward considering this situation one in which "reasonable cause" exists for not asserting such penalties. 

Source: https://www.irs.gov/individuals/international-taxpayers/delays-in-issuing-ssns-to-aliens-by-the-social-security-administration

 

Personally, I agree with Wuozopo's analysis that to be eligible for an SSN and ineligible for an ITIN, it means your immigration application has to have been previously approved.  My interpretation is that you would have to be fully approved and the delay would need to be with the SS administration for the SSN applied for or blank SSN to be paper filed to be the 100% correct position.  Wuozopo convinced me of this in a previous thread.

 

However, I think it's a substantial gray area, and it's a reasonable position to believe that you could file MFJ with a blank SSN or SSN applied for and believe that you are not entitled to an ITIN if you have a filed I765 with the SSN application box checked.  I also think if filing MFJ ITIN vs MFJ SSN doesn't result in a substantial difference in tax, it's very low risk as there's no tax difference, and I would feel totally comfortable filling this way waiting for the SSN to arrive.  I don't think there would be any bad consequences and the position is reasonable given the guidance we've listed.  I'd be totally comfortable filing a return that way.

Edited January 10, 2022 by Merica-n

[Merica-n 65]

On 1/9/2022 at 8:34 AM, Crazy Cat said:

How does that "SSN applied for" work?  I have not seen that in any IRS reg.  Will the IRS process such a return as a joint filing?  

There may be another document that is more on point to answer your question, but this summary is correct.

 

Quote

A return filed without a required entry, form, schedule, or other missing information or documentation is a valid return for all purposes.  Accordingly, the service has an obligation to retain the valid return, and assess the tax shown as due on the return regardless of whether it is a balance due, refund, or zero balance return.  Further, the Service should correspond with the taxpayer for the missing information and/or documentation.

Source: https://www.irs.gov/pub/lanoa/pmta01947_7440.pdf

 

Conclusion, they will accept the tax return with the missing tin, but the following may happen.

 

1.  They may generate an automatic math or clerical error notice based on the incorrect tin and any exemption, deduction or credit related that depends on the missing tin may be automatically denied and you'll have to submit a response disputing this with reasonable cause.  See IRC Section 6213(g)(2)

 

2.  They send you a letter requesting the missing information and work from there.

 

3.  They might accept the return as is and nothing happens.