Tax Filing for a LPR with Non-Resident Alien Spouse Living Abroad

[GEOntificator 282]

Hi All - It has been a while. Back for some advice.

 

My mother got her GC last year. My father lives in my home country (mom goes back and forth) and is a non-resident alien. There are a few things I'd like to ask:

 

1) I understand that my father needs to get an ITIN through W7 form and mail it to the IRS. How long does it take to get ITIN after W7 gets delivered? IRS instructions ask for certified copies of supporting documents... What substitutes a certified copy? For example if he submits a photocopy of his passport what kind of certification does it need?

2) My understanding is that my mother (LPR) and father (non-resident alien) can:

• Elect to file MFJ in which case my father will be considered a resident for tax purposes.
• Elect to file MFS. I think father will still need an ITIN, but will he have to file anything or will my mother have to declare any of his income?
• Elect to file as HOH which she does not qualify for.

 

MFS filing seems to be the best option for them but I want to ensure they understand and know all there is to know. 

 

I would appreciate anyone who can chime in who just went through something similar.

 

Thanks.

 

[Gabriel5454 22]

On 1/17/2025 at 9:39 AM, GEOntificator said:

Hi All - It has been a while. Back for some advice.

 

My mother got her GC last year. My father lives in my home country (mom goes back and forth) and is a non-resident alien. There are a few things I'd like to ask:

 

1) I understand that my father needs to get an ITIN through W7 form and mail it to the IRS. How long does it take to get ITIN after W7 gets delivered? IRS instructions ask for certified copies of supporting documents... What substitutes a certified copy? For example if he submits a photocopy of his passport what kind of certification does it need?

2) My understanding is that my mother (LPR) and father (non-resident alien) can:

• Elect to file MFJ in which case my father will be considered a resident for tax purposes.
• Elect to file MFS. I think father will still need an ITIN, but will he have to file anything or will my mother have to declare any of his income?
• Elect to file as HOH which she does not qualify for.

 

MFS filing seems to be the best option for them but I want to ensure they understand and know all there is to know. 

 

I would appreciate anyone who can chime in who just went through something similar.

 

Thanks.

 

Regarding two, your father does not need an ITIN/SSN for your mother to file taxes as MFS.  See here for more info.  In particular it says:

 

Quote

Select this filing status by checking the “Married filing separately” box on the Filing Status line near the top of Form 1040 or 1040-SR. Enter your spouse's full name in the entry space at the bottom of the Filing Status section and enter your spouse's SSN or ITIN in the space for spouse's SSN on Form 1040 or 1040-SR. If your spouse doesn't have and isn't required to have an SSN or ITIN, enter “NRA” in the entry space below the filing status checkboxes. For electronic filing, enter the spouse's name or “NRA” if the spouse doesn't have an SSN or ITIN in the entry space below the filing status checkboxes. Use the Married filing separately column of the Tax Table, or Section C of the Tax Computation Worksheet, to figure your tax.

Note that if she does choose MFS then she may more in taxes.  In our case it was the difference of a few thousand, it may be more or less in your case, but for almost everyone MFJ will save money.

 

The IRS requirements for certified copies are very strict.  My spouse had to go to the US Embassy to make a certified copy there.  This would be done by the notarial division there.  The process was fairly straightforward and cost $50.  Only issue is the inconvenience of having to travel if the embassy is far away.  Then your mother would send this certified copy, the application for ITIN, and your mother's tax returns to the IRS in one file.  First they will process the ITIN application, then her tax return.  It may take a very long time (think months) but it will get done.  Also, since your father is not a permanent resident, your mother will have to also attach a brief letter stating that her spouse is not a resident for taxes purposes but wishes to be treated as such.  Without this election she technically cannot file in the MFJ status.  For more information see here.  Also the W7 instructions are here.  Note that full packet (return + W7 + certified copy of passport) must be sent to the ITIN office and not the usual address that returns are sent to (see the instructions for the full details).

 

Note, I think this reflects a misunderstanding in your original post, the ITIN application (W7) is filed together with the return, because he cannot apply for an ITIN without a reason (the reason in this case being he is married to an LPR who is filing a joint return).

 

Hope that helps!

Edited Thursday at 11:42 PM by Gabriel5454

[GEOntificator 282]

49 minutes ago, Gabriel5454 said:

Regarding two, your father does not need an ITIN/SSN for your mother to file taxes as MFS.  See here for more info.  In particular it says:

 

Note that if she does choose MFS then she may more in taxes.  In our case it was the difference of a few thousand, it may be more or less in your case, but for almost everyone MFJ will save money.

 

The IRS requirements for certified copies are very strict.  My spouse had to go to the US Embassy to make a certified copy there.  This would be done by the notarial division there.  The process was fairly straightforward and cost $50.  Only issue is the inconvenience of having to travel if the embassy is far away.  Then your mother would send this certified copy, the application for ITIN, and your mother's tax returns to the IRS in one file.  First they will process the ITIN application, then her tax return.  It may take a very long time (think months) but it will get done.  Also, since your father is not a permanent resident, your mother will have to also attach a brief letter stating that her spouse is not a resident for taxes purposes but wishes to be treated as such.  Without this election she technically cannot file in the MFJ status.  For more information see here.  Also the W7 instructions are here.  Note that full packet (return + W7 + certified copy of passport) must be sent to the ITIN office and not the usual address that returns are sent to (see the instructions for the full details).

 

Note, I think this reflects a misunderstanding in your original post, the ITIN application (W7) is filed together with the return, because he cannot apply for an ITIN without a reason (the reason in this case being he is married to an LPR who is filing a joint return).

 

Hope that helps!

This is a very detailed and awesome response which I greatly appreciate. Mom was proactive and got my father's passport apostilled so if needed she can send a certified copy. I will look into your post in great detail including the links and relay the info to her. She can then choose how she wants to file depending on tax obligation.

 

Much appreciated! Thank you!