Amend Return

[lady_kontacts]

Hi, I was wondering if I could amend a return with a non resident alien spouse that does not have a SSN or an ITIN. My HOH status was fine for federal tax, but CA state did not allow it because I was married and living with spouse, but I’m the one paying all our expenses, along with our dependents as well. 
But my question is, after we apply for an ITIN for spouse, can I amend 2022 year return?

[NCperson]

if you are married and living with your spouse, how did you come to the conclusion that filing status HOH was fine for federal purposes?  

if you live with your spouse, you can not file HOH. 

Your only choices are Married-filing Joint or Married- Filing Separate.  Suggest resolving this issue before tackling CA.  You can certainly amend the return. 

here is the offical IRS tool to determine filing status

https://www.irs.gov/help/ita/what-is-my-filing-status

[TomD8]

Married taxpayers whose spouse is a nonresident alien may file using the Head of Household status.  However, the taxpayer must have another qualifying person to be eligible for HOH; the spouse doesn’t count. 

[NCperson]

@TomD8 - before posting, I used the IRS app to assess HOH.... While I agree that HOH is permitted if the NRA spouse lived separate from the taxpayer with a qualifying dependent, the tool indicates that if the two lived together, HOH is not a permissible status - it has to be MFS with no flexibility: 

As soon I answered that the two were married and lived together, this is the resulting filing status: 

"Your filing status is married filing separately.  You are not eligible for any other filing status."

if I answered they were married and didnt live together, after entering info about the qualifying dependent, indeed, HOH was the resulting status. 

The OP indicated they lived together.

https://www.irs.gov/help/ita/what-is-my-filing-status

However, I do stand corrected. 

https://www.irs.gov/newsroom/international-taxpayers-filing-status-if-married-to-a-nonresident-alien....

OPTION NUMBER TWO IS TO FILE AS HEAD OF HOUSEHOLD.

IN ORDER TO QUALIFY FOR THIS STATUS, YOU MUST HAVE PAID MORE THAN HALF THE COST OF KEEPING UP YOUR HOME FOR THE YEAR.

IN ADDITION, A QUALIFYING PERSON MUST HAVE LIVED WITH YOU IN YOUR HOME FOR MORE THAN HALF OF THE YEAR.

TO FIND OUT IF YOU QUALIFY, USE WORKSHEET 1, “COST OF KEEPING UP A HOME,” IN PUBLICATION 501 TO DETERMINE WHETHER YOU PAID MORE THAN HALF OF THE COST OF KEEPING UP YOUR HOME.

YOU CAN USE TABLE FOUR IN PUBLICATION 501 TO SEE IF YOU ARE A QUALIFYING PERSON.

ANY PERSON NOT DESCRIBED IN TABLE FOUR  IS NOT A QUALIFYING PERSON.

BUT IF BOTH CONDITIONS WE JUST DISCUSSED DO EXIST.

THAT IS, YOU MUST HAVE PAID MORE THAN HALF THE COST OF KEEPING UP YOUR HOME FOR THE YEAR AND A QUALIFYING PERSON MUST HAVE LIVED WITH YOU IN YOUR HOME FOR MORE THAN HALF OF THE YEAR.

THEN, YOU MAY CHOOSE THE HEAD OF HOUSEHOLD FILING STATUS.

.

[lady_kontacts]

@NCperson 

I did meet all the requirements for HOH, I pay for everything, not just more than half of our expenses, as well as my dependents’ expenses, spouse and dependents have been living with me the whole tax year. And like I said, federal tax went through fine without them changing filing status, but CA state disallowed the HOH Filing status because I was married and living with spouse firing last 6 months of tax year… but then doesn’t that contradict themselves?

[NCperson]

@lady_kontacts - I do agree that HOH for federal is permissible.  

It is possible that CA doesn't recognize this unique situation.  suggest requesting a copy of this PDF from the state and see if it mentions NRA situations.

https://www.ftb.ca.gov/forms/Search/Home/FormRequest/5465

[TomD8]

"I do not agree that HOH for federal is permissible."

@NCperson --

See this IRS reference:

https://www.irs.gov/individuals/international-taxpayers/us-citizens-and-resident-aliens-abroad-head-...

[NCperson]

UGH - I do agree it is permissible.  I fat fingered the response.. now corrected 

[TomD8]

@lady_kontacts wrote:  "CA state disallowed the HOH Filing status because I was married and living with spouse firing last 6 months of tax year… but then doesn’t that contradict themselves?"

Individual states are not required to follow the federal Filing Status guidelines.  In fact, several states have filing status rules that differ from the federal.

[Opus 17]

Why is your spouse an NRA if they lived with you in the US for more than 6 months?  Are they an F-visa student?  If they aren't on a student visa, they probably pass the substantial presence test. 

I suggest that your best overall solution would be to file as MFJ for both federal and state.  You are allowed to amend from HOH to MFJ.  Your spouse generally can't apply for an ITIN unless the application is attached to a tax return, so you would file the amended return and the W-7 at the same time.  Mail the federal tax return, the W-7, and the supporting proof to the address for processing W-7 applications.  After the IRS issues the W-7, they will automatically forward the amended return for processing.  When you receive the ITIN, you would file the amended CA return.  You may want to call the FTB and talk to a caseworker about this, because it will take a couple months to get the ITIN and you want to make sure it's ok to suspend review of your CA return until you get the ITIN.

[lady_kontacts]

My spouse came as a child to the US and his parents never filed for him to get a green card or anything and as an young adult going to college, he applied for DACA but never got a response back and now that we’re married, we haven’t started the process of getting him papers and this year I thought I qualified for the HOH.

but I did go back to the FTB for our state and it stated I couldn’t file as HOH because I was married and living with spouse more than 6 months.

but my question was about the ITIN and @Opus 17  gave the answer I needed. Thanks.

[Opus 17]

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@lady_kontacts wrote:

My spouse came as a child to the US and his parents never filed for him to get a green card or anything and as an young adult going to college, he applied for DACA but never got a response back and now that we’re married, we haven’t started the process of getting him papers and this year I thought I qualified for the HOH.

but I did go back to the FTB for our state and it stated I couldn’t file as HOH because I was married and living with spouse more than 6 months.

but my question was about the ITIN and @Opus 17  gave the answer I needed. Thanks.

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Your spouse is a resident alien, not a non-resident alien.  Because you live with your spouse, your only choices are to file married filing separately or married filing jointly.  The special rules discussed above only apply to non-resident aliens, they do not apply to you. 

You are always allowed to amend a return to change to MFJ, even after the regular deadline.  (You generally can't change from MFJ to something else.)

To file MFJ with a spouse who does not have an ITIN, apply for the ITIN at the same time as filing the amended return as a described. Here are some more links that may be helpful.

https://www.irs.gov/individuals/how-do-i-apply-for-an-itin

https://www.irs.gov/individuals/international-taxpayers/resident-aliens

https://turbotax.intuit.com/tax-tips/irs-tax-return/who-needs-an-itin-or-individual-tax-identificati...

https://turbotax.intuit.com/tax-tips/family/claiming-a-non-citizen-spouse-and-children-on-your-taxes...