Can I delay filing Married Filing Jointly with NRA spouse?

[bck86 20]

I have read dozens of posts and see that the common advice is to file Married Filing Separately if your spouse is still abroad. In my case, there is a significant tax liability difference in filing MFS and MFJ. Here's my conundrum:

 

• If I file MFS, I will owe a couple thousand
• If I file MFJ, we will get a refund of several thousands
• My spouse is abroad, has never been to the US, and we are currently DQ and just waiting for our interview letter

 

I read that if you are owed a refund, you can file your taxes up to three years after the filing deadline for the tax year. In this case, I would theoretically have until April 15, 2027 to file and get the refund. However, of course, if you owe, you must file by the regular deadline.

 

There is obviously a risk in waiting until he comes to the US to file the taxes, but is it a legally viable option for me? Do I have a correct understanding of the rules? I'm really hoping for our interview letter any day now, and at least if we had that I'd feel more comfortable with the decision to wait. Am I being silly, and should I just file separately and pay the thousands, even knowing I should actually be owed several thousand more?

 

The other thing is I'll be visiting him this summer, so an alternative option would be to file MFJ at a CAA when I see him, but it would be after April 15.

 

Thanks in advance!

[NorthByNorthwest 359]

You can file as MFJ but then you need to report your spouse's foreign income as well:

 

https://www.irs.gov/individuals/international-taxpayers/nonresident-spouse

 

Depending on your situation this may or may not work out in your favor in the end.

[bck86 20]

Just now, NorthByNorthwest said:

You can file as MFJ but then you need to report your spouse's foreign income as well:

 

https://www.irs.gov/individuals/international-taxpayers/nonresident-spouse

 

Depending on your situation this may or may not work out in your favor in the end.

 

Yes, I'm aware. My spouse has no income so this works out incredibly favorably if I file MFJ, which is why I'm pretty adamant about filing it that way.

[NorthByNorthwest 359]

3 minutes ago, bck86 said:

 

Yes, I'm aware. My spouse has no income so this works out incredibly favorably if I file MFJ, which is why I'm pretty adamant about filing it that way.

 

In that case it seems like an easy choice. As the IRS page states you will need to get an SSN or ITIN for your spouse if he doesn't already have one.

[bck86 20]

8 minutes ago, NorthByNorthwest said:

 

In that case it seems like an easy choice. As the IRS page states you will need to get an SSN or ITIN for your spouse if he doesn't already have one.

 

I appreciate your responses, and I am aware of these guidelines. I guess I could expand on why I'm not doing the ITIN approach to begin with. To file the Form W-7 for ITIN with my MFJ return, I'll need to include my spouse's physical passport, correct? But he is in Cambodia and currently waiting for his interview date, so I have no way of getting his passport, and we wouldn't want to send it anyway since he will need it for his interview and we don't want to risk him not having it. We're hoping our interview is coming soon. So I believe that means I cannot file the W-7 with my return by April 15.

 

Therefore, I feel like I have two options:

 

• Option 1: Delay filing my tax return until he arrives in the U.S. At that point, he'll get his SSN soon after and we can file like regular. My understanding (and please correct me if I'm wrong) is that this would be an okay solution because, since we are owed a refund, we actually have up until April 15, 2027 to file said return with no penalties (see here).
• Option 2: Delay filing my tax return until I go see him in Cambodia. We would actually then need to fly to Bangkok (no problem) to visit an IRS-approved CAA where he can present his passport in person, and we can file the tax return with W-7 without having to surrender his physical passport.

 

Either option would require me to file after the April 15, 2024 filing deadline.

 

I suppose my question is, is my understanding of the above correct? And if so, does it sound like a good idea?

[Ellie_7 103]

The IRS does not state a passport is the only document one can use to apply for an ITIN.  A passport can be used but the IRS states:

 

"There are 13 acceptable documents, as shown in the following table" - see "Supporting Documentation Requirements" here: https://www.irs.gov/instructions/iw7#idm140054953680896

 

[bck86 20]

Just now, Ellie_7 said:

The IRS does not state a passport is the only document one can use to apply for an ITIN.  A passport can be used but the IRS states:

 

"There are 13 acceptable documents, as shown in the following table" - see "Supporting Documentation Requirements" here: https://www.irs.gov/instructions/iw7#idm140054953680896

 

 

Ah I totally missed that. THANK YOU! That being said, the issue remains that all of his certified documents are in Cambodia and I have no way of getting them. I'm assuming certified copy means not a photocopy/PDF of said certified document.

 

Do you happen to know, then, if I can do my Option 2 beyond the April 15 date once I go to Cambodia and get a certified copy of his birth certificate from him?

[NorthByNorthwest 359]

1 hour ago, bck86 said:

 

Ah I totally missed that. THANK YOU! That being said, the issue remains that all of his certified documents are in Cambodia and I have no way of getting them. I'm assuming certified copy means not a photocopy/PDF of said certified document.

 

Do you happen to know, then, if I can do my Option 2 beyond the April 15 date once I go to Cambodia and get a certified copy of his birth certificate from him?

 

If you think he'll be in the US well before October 15 I'd just file IRS form 4868 to get the automatic 6 month filing extension, have your spouse tick the box for getting a SSN on his DS-260 and not bother with amended return or ITIN at all, but if you're DQ I'm guessing you already submitted DS-260? What did you state on there for SSN?

[Redro 4,611]

I remember a few months back a user was having issues filing an amended return. They wanted to get the refund they believed was owed to them but the IRS wasn't having it. They also owed taxes so that complicated the issue. 

@bck86 has the interview been scheduled or are you still waiting for the interview date?

Some consulates can be tricky and request to see 2023 taxes at interview when the interview happens after April 15. 

So, I would do option 2 you suggested in your post. Go to Thailand and file MFJ there. This way you will have proof you filed taxes in case the consulate requests it. 

[Crazy Cat 41,985]

11 hours ago, bck86 said:

I read that if you are owed a refund, you can file your taxes up to three years after the filing deadline for the tax year.

For immigration, that won't work.  

[bck86 20]

10 hours ago, NorthByNorthwest said:

 

If you think he'll be in the US well before October 15 I'd just file IRS form 4868 to get the automatic 6 month filing extension, have your spouse tick the box for getting a SSN on his DS-260 and not bother with amended return or ITIN at all, but if you're DQ I'm guessing you already submitted DS-260? What did you state on there for SSN?

 

I do think (hope) he’ll be here before October 15. Been DQ since January 2. Already submitted DS-260 and definitely checked the box that we’d like to get his SSN.

 

1 hour ago, Redro said:

I remember a few months back a user was having issues filing an amended return. They wanted to get the refund they believed was owed to them but the IRS wasn't having it. They also owed taxes so that complicated the issue. 

@bck86 has the interview been scheduled or are you still waiting for the interview date?

Some consulates can be tricky and request to see 2023 taxes at interview when the interview happens after April 15. 

So, I would do option 2 you suggested in your post. Go to Thailand and file MFJ there. This way you will have proof you filed taxes in case the consulate requests it. 

Amending is definitely something I’m not interested in, too much paperwork. But we are for sure owed a refund, we won’t owe taxes.

 

Just waiting for the interview date now. A couple of people who were waiting for interviews in Cambodia got their interviews 5-6 months after DQ so I’m hoping mine is coming soon, been DQ for almost 3 months now. 

 

1 hour ago, Crazy Cat said:

For immigration, that won't work.  

Do they require a filed tax return, even if you aren’t legally required to file it just yet? I can obviously provide W-2s for the past calendar year, make well over the financial threshold, and we have proof of joint finances (property ownership).

[Crazy Cat 41,985]

9 minutes ago, bck86 said:

Do they require a filed tax return, even if you aren’t legally required to file it just yet?

You said you could delay filing for 3 years.....If required to file for the most recent tax year, you have to provide a tax return or transcript with the I-864. 

Edited March 23 by Crazy Cat

[Redro 4,611]

12 minutes ago, bck86 said:

 

 

Do they require a filed tax return, even if you aren’t legally required to file it just yet? I can obviously provide W-2s for the past calendar year, make well over the financial threshold, and we have proof of joint finances (property ownership).

Some consulates request the most recent tax returns when the interview is after April 15- even when the case has been DQ’ed before April 15. I won’t say why some request it and others don’t… but if they want to delay the case that’s one of their tactics.  You can probably submit a request for extension in the event they request your 2023 taxes. 

Edited March 23 by Redro

[Crazy Cat 41,985]

13 hours ago, bck86 said:

I read that if you are owed a refund, you can file your taxes up to three years after the filing deadline for the tax year.

The source you posted does NOT say you can legally delay filing taxes for 3 years.  It says after 3 years, you would lose any refund.   You cannot delay filing taxes for 3 years if you want your immigration case to proceed.

 

Your options are to file as Married Filing Separately now, then amending the return after spouse has a SSN.....or getting your spouse an ITIN, then filing a joint return. 

Edited March 23 by Crazy Cat

[Crazy Cat 41,985]

25 minutes ago, bck86 said:

I can obviously provide W-2s for the past calendar year,

You still have to show of evidence that you filed taxes.