Can someone help me understand how to amend a jointly filed 1040, and file individual 1040-NRs? Do I need to fill two 1040-X?

[kathan251191]

I filed my taxes jointly with my wife (1040), and recently got to know that we are non-resident aliens and should've filed 1040-NR instead. While I understand that I need to fill 1040-X and 1040-NR, I am not sure how to amend a jointly filed tax return and break that into two 1040-NRs.

[tagteam]

I'm going to page Champ @pk for input on your question. Please check back later.

[pk]

@kathan251191 ,  before we get in to how to file a Non-Resident  tax return first I would like to know the antecedents :

(a) Country you  & your spouse  are  from?   If not from the same country then  citizenship of each ?

(b) what visa ?

(c) when did you enter the USA ?   Was this  your first  entry in the  last three years ?

(d) Do you both have income  from  US sources ?    Or just one of you ?  Which spouse ?

(e) Do you have children living with you ?

I will await your answer(s) to my questions.

[kathan251191]

Hi, thank you for getting back to us. Here are the answers to your questions. 

a & b - Husband - India, L1B Visa; Wife - India, L2S Visa

c - Both entered USA on 08 July 2024. First entry ever, in the US. 
d - Both have US Income. 

e - No children

[pk]

@kathan251191  Namaste ji.

So both of you work  and therefore have US sourced  income.     Assuming that you actually meant that you entered USA on July 8th. 2023.  This would mean that by the end of the year 2023 you would have passed the substantial Presence Test.   Thus  you were a resident for tax purposes  for the year 2023 ( starting from the first day of presence).   However, because  it would have been a short year for you, while you file jointly on form 1040, you cannot take standard deduction -- you have to use itemized deduction.

  I am also assuming that you both work/ earn therefore you must have  SSNs -- yes?

Does this make sense ?   If you have more question s on this , you are welcome to add to this thread  OR  you can PM me  ( if the questions are not of general interest -- just no personally identifiable info please ).

Namaste

pk

[rjs]

@pk 

I don't see how they passed the substantial presence test by the end of 2023. They only entered the U.S., for the first time ever, on July 8, 2023. July 8 through December 31 is only 177 days. The substantial presence test requires 183 days. So I don't think they met the substantial presence test until January 6, 2024.

If I understand correctly, that means that they are not automatically residents for 2023. If they want to be treated as residents for 2023 they have to make the "first-year choice." Making that choice requires attaching a statement to their 2023 Form 1040 tax return. See "Statement required to make the first-year choice for 2023" in IRS Pub. 519 (page 11). The original question says that they have already filed Form 1040 for 2023, presumably without the statement. I don't know if the statement can be attached to an amended return.

The OP didn't say whether they took the standard deduction or itemized deductions on the Form 1040 that they have already filed. I assume that if they took the standard deduction, and they make the first-year choice, they have to amend to take itemized deductions.

If they do not want to, or are not able to, make the first-year choice, then I think we are back to the original question of how to amend an invalid joint Form 1040 to two separate Form 1040-NR MFS returns. That probably requires following the procedure in the Internal Revenue Manual for an "invalid joint election." As a practical matter, that procedure requires professional help.

[kathan251191]

Thanks for your responses. To clarify, we did not pass the substantial presence test. To answer your question about deductions, we claimed standard as we were not aware that we can’t claim that. I just looked up first year choice and that’s a good choice to go with. Can you confirm if we qualify for that even if we were not here the previous year (2022)? Also, I’m not sure how to amend our current 1040 to include first year choice. Can anyone help with this?

[pk]

@kathan251191    as you and  my colleague @rjs  have  corrected  me  in that you are  NOT a Resident for Tax purposes.  My fault is that I did not spend enough time to calculate the actual "days Present" for  SPT.  On relooking at the  date of arrival of  July 8th. 2023,  you would have been about a week + short of reaching the 183 days  required , especially since  this was your first entry within the last three years.   Please forgive my error  caused by  not paying sufficient attention.

Next :   Given that  you had no other income ( i.e. outside of US sources  -- right ? )  you suffer no harm by requesting to be treated as a  Resident for Tax purposes for the year 2023.    Also of import is that  you used  standard deduction in error  since  you had a short year.   I am not aware of any contravening treaty  articles  ( US-India  Tax Treaty ? ). Thus  the easiest corrective action is to 

(a) amend your return -- form 1040.  Tell Turbo Tax  that you need to amend your already filed ( and accepted for processing  ) return .   

First  save your filed return under another name  such as  "  2023 -- Tax Return as  Amended".  Then open this saved   " As Amended Return " and  say that you want to amend.

Second this will have screens to fill out the  form 1040-X.   You go down to the screen where  it asks  for deduction --  choose itemized deduction and enter  all the deductions   (  it would best if you familiarize yourself with allowable deductions  ---Instructions for form 1040 at www.irs.gov . 

Third,  choose to file by mail, print, sign and date.   Collect, the filing forms, check for any amounts owed   ( note that Turbo will assume that you have received / paid  amounts shown on original return.

Fourth -- Add a  letter  with your names , address, SSNs,  etc.  Requesting that you are exercising the First Year Option,  that you are going to pass  the SPT  on Jan XX, 2024 , and therefore want to be treated as a Resident for the tax year 2023.  Must be signed by both you and your spouse.

Fifth-- collect all these documents and mail in to the IRS.    Note that depending on the state where you live, this may or may not affect  ( and therefore require ) any state filings.

I hope this  clears  up things for you.  Obviously, if you need more help on this you are welcome to add to this thread.

BTW --- since you are on L-1/2, are you in business for yourself  or what  -- I ask because there may be other things to consider.

Namaste ji  -- Mafi kor doh

pk

[kathan251191]

Appreciate your detailed response. We’ll do the needful. To clarify, we are both not self-employed, and are in the payroll of American companies. We filed our taxes using W2. 

I just have one more question for you. I believe we would’ve become resident aliens on May 4th. Our total number of days in the US in 2023 is 177, which becomes 59 through substantial presence test in 2024. Is that correct? 

[pk]

For purposes of 2023, the SPT considers all days present in 2023 and you would reach  SPT  once you cross the additional days in 2024 --- so it will sometime in Jan. 2024,  Therefore you filed  the  first year  option.

For Tax Year 2024,  you would all days present in 2024 Calendar year Plus  1/3rd. the days   present in 2023 ( as you say approx. 59 ) plus  1/6th the days present in 2022 ( zero ).  This test will be used  each year  , absent a change of status.

Does this answer your question ?

 Is there more I can do for you ?

Namaste ji

pk