Can we file a joint tax return if my spouse relocated in April 2024? (nuances below)

[Djritxist]

Hi,

I am a US citizen, but my wife is not. She relocated to the US in April so she meets the substantial presence test (as well as the green card test). In theory, she would be a dual status alien and the only way we could file together is by making a 6013 (h) election. However, I already made that same election many years ago when I moved to the US myself, and I understand this election can only be taken once during lifetime. Based on this, it would appear we cannot file together. However, my wife happened to be in the US on January 1 on vacation. Under the substantial presence test, the residency start date is the first day that she was in the country, which would be January 1. Does this mean she is a resident alien for the entire year (and not a dual status alien), even though she was not in the US during the first four months of the year.If so, can we file together without making a 6013 (h) election?

Appreciate any insights on this convoluted situation!

[KrisD15]

Yes, if she was physically present in the US the same year she meets the Substantial Presence Test, the starting date of her non-residence status is the earliest date in US including vacations, but not days when travel was restricted because of medical reasons.

So if she was on vacation in the states on January 1 2024, and she meets the 183 days in 2024, her start date would be January 1, 2024. 

According to the IRS:

"You are treated as present in the U.S. on any day you are physically present in the country, at any time during the day. However, there are exceptions to this rule. Do not count the following as days of presence in the U.S. for the substantial presence test:
 

• Days you commute to work in the U.S. from a residence in Canada or Mexico if you regularly commute from Canada or Mexico.
• Days you are in the U.S. for less than 24 hours, when you are in transit between two places outside the United States.
• Days you are in the U.S. as a crew member of a foreign vessel.
• Days you are unable to leave the U.S. because of a medical condition that develops while you are in the United States.
• Days you are an exempt individual"

"If you meet both the green card test and the substantial presence test in the same year, your residency starting date is the earlier of:

The first day you are present in the United States during the year you pass the substantial presence test, or

The first day you are present in the U.S. as a lawful permanent resident (green card holder)."

[Djritxist]

Thank you so much for your quick response, KrisD15!

Yes, she was present on January 1 2024 on vacation, the same year she passed the substantial presence test.

Just to confirm: Because her residency start date is January 1st 2024 based on your answer, she is NOT considered a dual status alien for tax purposes in 2024 (even though she lived abroad January through April), correct?

Thanks again!

[KrisD15]

Correct.

There was some discussion on this. The start date is the first date the person was physically in the US.

I could not find in IRS publications reference to vacation, but vacation time is not excluded and there seems to be more requirements to exclude days, rather than include them.

This link specifically refers to vacation days, although it is not an IRS publication.

Additionally I found this from the IRS:

"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."
 

This is another choice besides the election to file a joint return (6013 (h)) and could be an option for you if she was dual-status, however I strongly believe the time in January was physical presence and that would be her residency start date. 

[Djritxist]

Thanks, Kris

Just one last clarification. In your response you mentioned there is "another choice besides the election to file a joint return (6013 (h))". However, I believe the requirements you pasted below actually pertain to election 6013 (h). Even though Publication 519 does not explicitly mention "6013", the requirements are identical to the ones for 60`13 (h), per the link below. Let me know if I am mistaken. Thanks again!

Election Under Section 6013h    

[RobertB4444 · Accepted solution]

You appear to be correct.  But as @KrisD15 points out your spouse's presence in the US on January first negates that option anyway.  You should file jointly with her as a resident alien.

@Djritxist