6013(g) election subsequent years question

[hpccpatest]

My wife and I elected to file 'Married jointly' in 2021 by electing for 6013(g) on Form 8960. (I was a resident alien while she was a non-resident alien).

We attached a separate statement stating our choice to be considered as resident aliens for tax purposes.

For this year's (2022) taxes, on Form 8960 do we need to:

a) Select 6013(g) again?

b) Attach a statement again, which states that we elect to choose 6013(g)?

Currently, I am a resident alien and my wife is also a resident alien. We both pass the substantial presence test.

Thank you.

[RalphH1 · Accepted solution]

Depending on whether your wife became a “resident for tax purposes” in 2022 or 2023 (I can’t tell from your post), different rules would apply. However, the tax treatment would be the same either way, with no special residency-related statements or check boxes needed going forward.

If her residency (through the "Substantial Presence Test") happened in 2022, the 6013 election is no longer relevant, as you’re both treated like U.S. citizens now. If it just occurred in the current year, then the 6013 rules (seen here in Publication 519) tell us that the election you made last year applies to all later years (barring certain changes of circumstances or the election to switch back), with no further statements or followup required.

Regarding the election on Form 8960, it’s actually specific to the “Net Investment Income Tax,” and whether you wanted your joint treatment to apply to it as well — but only for last year. Going forward it’s also a non-issue, as your NIIT will be calculated according to your joint or separate filing status (so no need to check any 6013 boxes).

@hpccpatest, feel free to add any followup questions. I hope you and your wife are enjoying life in the U.S. so far (aside from the taxes, of course)!

[hpccpatest]

Thank you @RalphH1, that is really helpful.

[RalphH1]

You're very welcome, @hpccpatest!