Are education tax credits allowed if filed as Head of Household with nonresident alien spouse?

[pipiboy9]

According to Instruction to Form 8863, you cannot claim an education credit if  you (or your spouse) were a nonresident alien.

But TurboTax says I can get education tax credits when I file as Head of Household with nonresident alien spouse.

Is this an error in TurboTax?

[DS30 · Accepted solution]

You are allowed to file as Head of Household if your spouse is a nonresident alien, even if you lived together. AS HoH you may claim educational credits for you or your dependent child.

[edited 2/19/2018 - 1:03PM PST]

[pipiboy9]

Thank you very much for your great information.

[pipiboy9]

Why did you change your answer? You said I could claim it initially. Are you sure about this answer?

[DS30]

Sorry. my original answer was correct - I edited back to the original answer.

[pipiboy9]

Thank you for your time. Can I ask on what evidence or regulation did you base you answer?

[DS30]

<a rel="nofollow" target="_blank" href="https://www.irs.gov/instructions/i8863#idm139719960052560">https://www.irs.gov/instructions/i8863#id... fact that you are claiming HoH means that your NRA spouse is not even being considered related to you for US filing purposes. The exception that you cannot claim the credit if you or your spouse is a nonresident alien means if you or your spouse is actually filing a tax return as a nonresident alien (Form 1040NR). In this case, the nonresident alien filing will not be allowed the education credit.

[pipiboy9]

Thank you very much for your reply. Just one more clarification question. I file 1040 as a head of household and my spouse files 1040NR as a nonresident alien separately. So can I still claim the education credit? I really appreciate all you help.

[DS30]

The 1040NR filing would not be allowed the deduction but you would be able to claim the deduction as HOH on 1040

[pipiboy9]

Thank you so much for all your answers. You are the best!

[DS30]

Good Luck with all your future endeavors 🙂