F1/F2 filing as tax resident

[vc76]

I'm on F1 status, my spouse and child on F2 visa. We are in US since mid 2017, so pass substantial presence test and will file 2022 taxes as tax residents for the first time. I have SSN, my wife and child do not have SSN/ITIN. During 2017-2021, I filed form 1040-NR, spouse and child - form 8843.

Questions for filing 2022:

- is my spouse considered "tax resident" for 2022? (F2 visa, >5 years in US, no SSN/ITIN)

- how should we file taxes: "married filing jointly" or "married filing separately"

- can we file "married filing jointly" if my spouse does not have ITIN via Turbo Tax?

- if "married filing jointly", does my spouse has to file taxes? (she's not working)

- do my spouse / child need to get ITIN before filing taxes for 2022 or attach W-7 form if we file jointly?

- which reason should my spose choose in W-7 form:

     - "Dependent/spouse of a nonresident alien holding a U.S. visa" OR

     - "Spouse of U.S. citizen/resident alien"? OR

     - "U.S. resident alien"

Thank you!

[Anonymous_]

I believe @pk may be able to help here.

[pk · Accepted solution]

@vc76  As I understand your situation

1. You a F-1 visa student have completed your exempt period  and thus 2022 ( 2017 through 2021 were  exempt ) is the first year you are filing as  Resident for tax purposes.

2. Your spouse  on F-2 and  child also on F-2 have been living here in the USA  all this time.

3. The question now is how to file for 2022 tax year.

Generally , and absent any  independent adjustment to the  dependent visa, the tax status of the  dependent is the same as  that of the main visa holder. Thus once you became a  resident for tax purposes, your spouse also became a Resident for Tax purposes.  Thus you can indeed file as Married Fling Joint ( MFJ)  and obviously this means all her world  income  ( if any , and just yours ) is taxed by the USA.

Now to be able to file a  joint return  or any return for that matter one must have a TIN  ( Tax Identification Number  --- SSN, ITIN or ATIN ).  Since your spouse does not have any TIN, you would need to file  for that , either separately or along with your return -- in ether case the processing of your return ( any refund issuance  ) would be delayed .

For filing along with your return , you prepare the return using TurboTax, use a dummy SSN for spouse  and child  (  you could use  your own SSN and replace the last four digits  with  things like 4000 and 5000 for the spouse and child  respectively), then print the return, replace the  dummy SSNs with  " N R A ", sign date  by both you and spouse.  Next download the ITIN application W-7, attache all the  documentation required , and send the whole thing by secure post  to the IRS.   This will allow IRS to issue  ITIN retrospectively and then process your return -- but it will take time.

Is there more I can do for you ?

[vc76]

@pk thank you for the detailed reply! I have some follow up questions:

- you mention to replace the dummy SSNs with "NRA" - does it stand for non-resident alien (she is resident alien already)? I also saw recommendations to us "RA" (resident alien?) and "APPLIED" - does it matter what we use?

- do I get it right that I need to send the federal taxes (MFJ pack) + W-7 form to the address listed for W-7, not the the address of regular tax form submission?

- if I use 'married file separately', is my spouse require to file taxes (she has no income)? If so, should she follow the same approach for SSN fields, i.e., dummy SSN, print, replace SSN...

- how should we deal with state / local taxes if ITIN is requested for my spouse?

- do I need ITIN for my child (F2 visa)?

Thank you!

[pk]

@vc76 ,

(a) you use NRA to draw attention that the person has NO TIN.  The space  of the TIN  ( SSN / ITIN ) entry may not be large enough to write in RA-- Applied for ITIN. 

(b) No,   you send the mailed in return to where the return should be sent  ( based on whether there  check enclosed  or not and State ). This is force the system to recognize that you have filed a return and  they will have to move the  W-7 to appropriate  area  and track the whole thing. If they come back for more info for the ITIN issuance then follow the direction in the note sent by the IRS at that time.

(c) If you want to file as Married Filing Separate, your standard deduction will be less, you will  still have to get the ITIN  for  her/him later but without any income she/he does not need to file. ITIN is issued ONLY so  you can file jointly.

(d) Ideally you should get TIN for the child also ( if the child is born here in the USA , you could get SSN ), especially if you stay here long enough to become a Tax resident -- because many credits /benefits  require  SSN or ITIN.

(e) If you file joint for the federal, you can also file the State the same way or as  MFS ( most states allow that ).  The state  processing may be delayed because  they will/may await the issuance of the ITIN.  It is not very uncommon for this situation  { other than of course the  IRS in the past was significantly understaffed }.

Is there more I can do for you ?

[vc76]

@pk thank you again! One more point regrading the child. He was born outside US, currently under F2 visa, also >5 years in US.

- Can I claim him as a dependent? - I though only children-residents are eligible. Requirements for "qualifying child": "You can’t claim a person as a dependent unless that person is a U.S. citizen, U.S. resident alien, U.S. national, or a resident of Canada or Mexico". Or does "U.S. resident alien" here mean resident for tax purposes? and respectively I can claim my child as dependent?

- If I do MFJ and claim dependent (child), do I attach two W-7 forms (for spouse and child)?

- I'm also confused on where to submit. You mention above I should submit to where the return should be sent. Will they forward W-7 form to the appropriate place? The W-7 form instruction states that tax report should be attached to that form and a different address is stated (for form to be sent)

Thank you! 

[pk]

@vc76  instead of my trying to paraphrase the latest guidelines  ( there is a change coming post summer of 2023 ), it is best that I refer you to the IRS page --- this answers all your questions including whether a dependent ITIN is required--yes ?   See this  >>>>     https://www.irs.gov/instructions/iw7#en_US_202112_publink100046017.

It is a great resource

pk