For 2021 taxes, we are making choice to treat my non-resident alien spouse as resident alien and file joint return. We know that we both will be obliged to declare our worldwide income on the form.
Do we need to report FBAR for my spouse as she will be treated as resident irrespective of her non-immigrant visa status?
Yes, if your spouse has foreign financial accounts, she has to file a FBAR.
Even US residents are subject to FBAR reporting.
She can file her FBAR here.
Yes, if your spouse has foreign financial accounts, she has to file a FBAR.
Even US residents are subject to FBAR reporting.
She can file her FBAR here.
Is that really so? What do you make of this response from another expert:
An NRA that elects to be treated as a US taxpayer under 26 CFR 1.6013-6 is only subject to tax rules listed in title 26 of the US code (i.e. the IRC). Since the rules for FBAR filing are in title 31 of the US Code, no FBAR filing requirements exist for an NRA that makes the election. Furthermore, the IRM 4.26.16.3.1 (07-01-2008) states that the FBAR instructions should be used, and those instructions clearly state that an FBAR is only required for a US resident or citizen. Consequently, an NRA spouse that elects to be treated as a U.S. taxpayer does not need to file an FBAR.
Per the FBAR instructions. "United States Resident. A United States resident is an alien residing in the United States. To determine if the filer is a resident of the United States apply the residency tests in 26 U.S.C. section 7701(b). When applying the residency tests, use the definition of United States in these instructions."
This means if a spouse chooses to be treated as a US Resident, then they will need to file a FBAR to report foreign assets.