Hello, In 2021 I made the following election “This letter is for us to declare an election that both of us choose to be treated as U.S. residents for the entire tax year for tax return purposes and to file the 1040 return jointly. XXXXXX is a U.S. citizen, while xxxxxx (spouse) was not a U.S. resident on the last day of fiscal year 2021 within the meaning of IRC Section 7701(b)(1)(A)” However, for 2022 I did not make any election. My wife arrived in the U.S. in August 2021, we were married in October 2021 and applied for “Adjustment of Status” in early November 2021. As of today (5/30/23), my wife is still waiting for her Green Card but as received a SSN back in September 2022. My questions are as follows: Did I file the correct election (IRC Section 7701(b)(1)(A) to file my tax return jointly with my spouse? If not, what election should I have filed? I ask cause I noticed there is another Joint Return Election (IRC 6013(g) and (h)) – so confusing???Are there any other elections I should have filed in addition to the one I filed above?Should I have filed the election again for 2022? If yes, do I just send it in to the IRS or do I need to make some sort of amended return?What will I need to do (i.e., cancel, suspend election, etc.) when my wife becomes a legal U.S. resident (gets Green Card). I would greatly appreciate any assistance anyone in the TurboTax community can provide. Regards

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dvallee40

Level 3

Question

Filing Joint Taxes with a non resident Spouse

Forum|Forum|3 years ago
May 30, 2023
1 reply
11 views

Hello,

In 2021 I made the following election “This letter is for us to declare an election that both of us choose to be treated as U.S. residents for the entire tax year for tax return purposes and to file the 1040 return jointly. XXXXXX is a U.S. citizen, while xxxxxx (spouse) was not a U.S. resident on the last day of fiscal year 2021 within the meaning of IRC Section 7701(b)(1)(A)”

However, for 2022 I did not make any election. My wife arrived in the U.S. in August 2021, we were married in October 2021 and applied for “Adjustment of Status” in early November 2021. As of today (5/30/23), my wife is still waiting for her Green Card but as received a SSN back in September 2022. My questions are as follows:

Did I file the correct election (IRC Section 7701(b)(1)(A) to file my tax return jointly with my spouse? If not, what election should I have filed? I ask cause I noticed there is another Joint Return Election (IRC 6013(g) and (h)) – so confusing???
Are there any other elections I should have filed in addition to the one I filed above?
Should I have filed the election again for 2022? If yes, do I just send it in to the IRS or do I need to make some sort of amended return?
What will I need to do (i.e., cancel, suspend election, etc.) when my wife becomes a legal U.S. resident (gets Green Card).

I would greatly appreciate any assistance anyone in the TurboTax community can provide.

Regards

pk_

Level 15

@dvallee40 , first it is confusing indeed ( at least for the uninitiated and the rest of us ) and so don't feel bad.

Section 7701 generally is a definition section while section 6013 is the defines actual eligibility, the election mechanism, the limits of such .

In your particular case , the letter requesting treatment of non-resident alien spouse as a resident i.e. the contents of such document is the only action required --- there are some items / information/ assurances etc. that are generally needed within the body of the request. Once you have requested ( and unless IRS has specifically rejected ) you proceed as if granted -- your return was processed, your refund issued etc. are general indication of granting. The quotation of the statute section ( correctly or in error ) does not generally affect the outcome ( unless of course you are arguing a determination ).

Once granted , the joint filing status remains valid unless voided by situations/actions called out in section 6013 -- separation/ death etc. etc.

Bottom line is don't worry about the request, assume it has been granted and is good for as long as you choose to file together.

Assuming that you used ( or requested ) ITON for the Non-Resident spouse while filing jointly in 2021, now that the spouse has SSN, use that for the 2022 filing. For tax year 2023, nothing changes vis-a-vis tax filing ( Married Filing Joint).

Does this help ? Is there more I can do for you ?

dvallee40Author

Level 3

Hello PK,

Thanks for prompt response and detailed information. Yes - this helps a lot. I understood most of what you explained. 🙂 I did have one follow up question.

I electronically submitted my taxes for 2021 in October 2022 (filed extension so that wife could get SSN in time which she did - didn't want to paper file) and mailed in the election mentioned above separately . Does this cause any issues bye itself. With this said, I just received an IRS letter asking for clarification on what I sent (the election). I suspect the IRS agent on my case didn't understand my election so I plan just replying with the following relating to the letter "My wife is not a U.S. Citizen and I want the election I made to in the record of my tax file". Any thoughts?

Regards