Can I file a joint-return on my first year?

[Em5516]

Hello community!

I arrived in the USA at the beginning of 2023 with my wife (from Canada) and were therefore non-residents at the beginning of the year, but both residents at the end of the year (L visa, with presence test, both of us have SSN).

Can I use TurboTax to do a joint return in this case or must do dual-return without TurboTax then (1040-NR not supported)?

Based on publication 519, there's a paragraph regarding "Choosing Resident Alien Status" which requires that my wife and I both write a statement to apply to be considered a US resident for the entire year and be able to make a joint return. Just want confirmation that I understood everything and no other implications.

Thanks for your help!

[Vanessa A]

Yes, it sounds as though you have understood everything correctly. You can use TurboTax to file the 1040 whether you choose First year Dual status or to be treated as a Resident Alien for the entire year. 

As to which election to make, if you chose First year choice, it would depend on the day you met the substantial presence test (without regards to the asylum application) as to whether you would still need to file a 1040-NR.  If you did not meet the substantial presence test until part way through 2023, and you elected First Year Choice you would have to file as a Dual Status Alien.  You would need to file the 1040 form for the time you are treated as a US Resident Alien which can be done through TurboTax along with the statement of election and then you could use Sprintax.com to file the 1040NR for the part of the year that you are treated as a Non-Resident Alien. 

"If you make the first-year choice, your residency starting date for 2023 is the first day of the earliest 31-day period (described in (1) above) that you use to qualify for the choice. You are treated as a U.S. resident for the rest of the year. If you are present for more than one 31-day period and you satisfy condition (2) above for each of those periods, your residency starting date is the first day of the first 31-day period. If you are present for more than one 31-day period but you satisfy condition (2) above only for a later 31-day period, your residency starting date is the first day of the later 31-day period." Pub 519

Basically, the options you listed are all possible based on what date you met the substantial presence test and how you would like to file.  

If you are married, it is possible that you could choose to be treated as a Resident Alien for the entire year.  

"Choosing Resident Alien Status If you are a dual-status alien, you can choose to be treated as a U.S. resident for the entire year if all of the following apply. 

•  You were a nonresident alien at the beginning of the year. 
•  You are a resident alien or U.S. citizen at the end of the year. 
•  You are married to a U.S. citizen or resident alien at the end of the year. 
• Your spouse joins you in making the choice. 

This includes situations in which both you and your spouse were nonresident aliens at the beginning of the tax year and both of you are resident aliens at the end of the tax year. 

Note. If you are single at the end of the year, you cannot make this choice. If you make this choice, the following rules apply. 

• You and your spouse are treated as U.S. residents for the entire year for income tax purposes. 
• You and your spouse are taxed on worldwide income. 
•  You and your spouse must file a joint return for the year of the choice. 
• Neither you nor your spouse can make this choice for any later tax year, even if you are separated, divorced, or remarried. The special instructions and restrictions for dual-status taxpayers in chapter 6 do not apply to you." Page 12 Pub 519