Dual-status return - 1040/1040NR - Married filing jointly, and, separately

[11223344551]

Hi Team,

I hope all are well.

I have a general question with respect to returns as a first year dual-status alien. My accountant has  advised to file my 1040 as "married filing jointly", and my 1040-NR as "married filing separately", given that part of the year was spent residing abroad. Generally speaking, is it correct to file in  this regard and to send both to the IRS, or, must it be one or the other (I appreciate 1040-NR cannot be filed jointly)?

Many thanks.

[pk]

@11223344551  cannot answer question with any specificity without the following info:

(a) When did  you you & spouse enter USA and with what visa ?

(b) which country are you from?

(c) During the last three years  ( i.e. 2020, 2021 and 2022 ) how many days did you spend in the USA for any reason ?

(e) Immigration status of each of you ?

I will circle back once I hear from you --yes ?

[11223344551]

@pk- Thank you for your prompt response, very much appreciated.

(a) When did you you & spouse enter USA and with what visa ?

   Entered mid-July, 2022, on a H1B visa (over the 183-day threshold)

(b) which country are you from?

   Canada

(c) During the last three years ( i.e. 2020, 2021 and 2022 ) how many days did you spend in the USA for any reason ?

   0-days in 2020 and 2021, and ~150-days in 2022.

(e) Immigration status of each of you ?

   H1B for myself, H4 for my spouse

[pk]

@11223344551 , thank you for your response.

1. Depending on exactly when you were admitted into the USA, you are just below  meeting the  Substantial Presence Test or just over the  limit.

2. If indeed you do not pass the Substantial Presence Test  ( Mid Jul would miss the  mark while Jul 2 would indeed work ), your choices are  to

                         (a) file  as Non-Resident Alien -- since  spouse has no income, only you need to file ( I am assuming that spouse did not earn anything in the US from the time of admission i.e. no remote working for  a Canadian entity).  You will be taxed ONLY on the US sourced income

                         (b) Once you have met the SPT, file as MFJ , with a  letter requesting you be treated as a Resident for the year 2022 --- this will allow filing form 1040 and MFJ ( assuming spouse has ITIN or SSN ).  But the problem with this is that the residency starts with the first day of presence in the USA and thus  you cannot use standard deduction, a major benefit of joint filing.

3. If you pass SPT, then  see option (b) above.

Does this help ?  IS there more I can do for you ?

[11223344551]

Thank you, @pk , for your response and clarification. Extremely helpful.

As part of my filing as a dual status alien, I am to write "DUAL STATUS ALIEN" at the top of the form 1040. In conjunction, am I also obligated to write "DUAL STATUS STATEMENT" on the top of the form 1040NR, or does it depend on the circumstances?

Much obliged.

[pk]

@11223344551 , I would put Dual Status on both

[11223344551]

Thank you, @pk . I will put "DUAL STATUS" on both, however, it appears that one must be"RETURN" and the other "STATEMENT" as per the following from the IRS website:

"Write "Dual-Status Return" across the top of the return. Attach a statement to your return to show the income for the part of the year you are a nonresident. You can use Form 1040NR, U.S. Nonresident Alien Income Tax Return or Form 1040NR-EZ, U.S. Income Tax Return for Certain Nonresident Aliens With No Dependents as the statement, but be sure to write "Dual-Status Statement" across the top."

Apologies for being a pain and laboring the point, however, I want to be sure that I get it right the first time. In light of the above, should the 1040 be "DUAL STATUS RETURN" and the 1040NR "DUAL STATUS STATEMENT", or, is there no need for anything to be written on the top of 1040NR?

Thank you once again.

[11223344551]

Hi @pk . Thank you once again for all your support in this matter.

Your guidance is to type "DUAL STATUS" on both forms. I contacted two colleagues of yours, one of whom stated that "DUAL STATUS ALIEN" is to be included on the top of the 1040 form only, while the other stated that "DUAL STATUS STATEMENT" is to be written on the top of of the 1040NR form.The IRS website provides a different answer.

May you kindly provide a definitive answer please?

Thanks again.

[DaveF1006 · Accepted solution]

It depends on which part of the year you were a resident and non-resident because there are two different set of instructions in IRS reference source that you provided in one of your posts. If you are a resident alien at the end of the year, you will write  Dual-Status Return" across the top of the 1040 return and Dual-Status Statement across the 1040 NR.. 

If you are a non-resident at the end of the year, the opposite is true. You will write Dual-Status Return across the 1040 NR and  Dual-Status Statement across the 1040.

Let me know if this helps!!