EIC for head of household married to Non Resident Alien

[DoctorJJ]

Fact: Non Resident Alien (NRA) (no social security number, no ITIN) lives in the US with spouse only for the last 3 months of the year. Spouse is filing as head of household (there is a qualifying child). Income is low enough.

To determine earned income credit (EIC), TurboTax (TT) asks, "I was married to a nonresident alien and we lived together for the last six months of 2022."

It seems that this answer is "no" since NRA did not live with spouse for the last 6 months of the year. With the "no" answer, EIC is allowed by TT.

However, in consulting another different tax software, to determine EIC, the question is, "I was married on the last day of the year, but lived apart from my spouse from July 1 through Dec. 31, 2022."

The answer seems to be "no" since spouse did not live apart from NRA from July 1 through Dec. 31, 2022; they lived together for the last 3 months of the year, as mentioned above. With this "no"answer, EIC is not allowed.

Any thought about this. Should EIC be allowed under these conditions?

[AmyC]

The problem begins with your filing status. Head of household is not allowed for you because your spouse lived in your home during the last 6 months of the year. You need to revisit your filing options - MFJ or MFS. See  Nonresident Alien Spouse | Internal Revenue Service.

The Earned Income Tax Credit Assistant - a quick quiz, determines if you’re eligible for the earned income credit (EIC) once you have made some decisions.

[DoctorJJ]

Thanks for the answer.

EIC determination: I do not think I agree since the criterion is whether you and your spouse had the same principal residence for the last 6 months of 2022. (Turbo Tax). If the NRA was present in the house for only part of the time during the last 6 months  (for example 2 months out of the last 6 months of the year) (not counting temporary absences, as noted by IRS), then the answer should be, "No", to the question, "you and your spouse had the same principal residence for the last 6 months of 2022."

As far as filing status, if the spouse was NRA  at any time during the year, the other spouse can choose head of household, as per this direct quote from https://www.irs.gov/individuals/international-taxpayers/us-citizens-and-resident-aliens-abroad-head-..., " You are considered unmarried for head of household purposes if your spouse was a nonresident at any time during the year and you do not choose to treat your nonresident spouse as a resident"

Any additional insights?

[DaveF1006]

To be eligible for the EIC, your spouse cannot be living in your house for the last six months of the tax year. the link you provided does indicate that you are considered unmarried for head of household purposes if your spouse was a nonresident at any time during the year and you do not choose to treat your nonresident spouse as a resident"  

Be careful with the verbiage here because this mentions being a nonresident and not a non-resident alien.  Since the spouse lived in the house, for three months, this means they are a resident in the sense that they were present and living in the US even though they may be considered a non-resident alien for tax purposes.  In this context, being a nonresident and a non-resident alien for tax purposes are two different things. IRS does not really make a distinction thus I would be careful in trying to claim a Head of Household status and claim the EIC. 

If you are using Turbo Tax Online, I would suggest using Turbo Tax live Full Service and let the experts make this determination. If using the software, I would recommend consulting with a CPA and allow them to interpret the tax law for you. 

Otherwise, I agree with AmyC post and her advice given.

@DoctorJJ