Federal and State Return - Foreign Spouse Married Filling Jointly

[newyorktax12]

Hi,

I got married to a non-US citizen in the summer of 2020. We are using the filing status as MFJ.

Per the IRS website, I should include the below when filing jointly.

Attach a statement, signed by both spouses, to your joint return for the first tax year for which the choice applies. It should contain the following information:

1. A declaration that one spouse was a nonresident alien and the other spouse a U.S. citizen or resident alien on the last day of the tax year, and that you choose to be treated as U.S. residents for the entire tax year
2. The name, address, and identification number of each spouse. (If one spouse died, include the name and address of the person making the choice for the deceased spouse.)

I’m on the Ready to File page on the Turbo Tax website, and it indicated that I can e-file my tax return. However, as per the IRS guidance, in order to fill jointly with my non-resident alien spouse, I would have to file by mail and attached a statement.

1. Could you let me know if I can e-file this tax return? If so, how would I attach the declaration? 
2. If I cannot e-file and have to file by mail, how would I go about filing the state return? Because when I chose the Federal as "file by mail" and the state as "E-file", I’m getting the following message, "this return cannot be e-filed before your federal return has been e-filed. You will need to e-file this return at the same time as your federal return, or after your federal return has been e-filed.”

Thanks in advance.

[DaveF1006]

According to this link written by a Turbo Tax Expert, you have two options to file. 

You have two choices in filing your taxes. Choice 1 seems like the best choice in this instance. Either way, you will need to mail in your return if your spouse  doesn't have a Social security Number or an ITIN. Besides, you cannot electronically file the documentation that is required with the return

Choice 1

• Treat your spouse as a resident alien for tax purposes.   If you do this, you will need to include your spouse's worldwide income in your US tax return and it will be subject to US taxes.  

To do this follow these steps.

   1. Attach a statement to your tax return, signed by both spouses, that states that one spouse is a nonresident alien and the other is a U.S. citizen or resident alien, and you are choosing to both be treated as US residents for the tax year.

   2. List the name, address and Social Security number (or Individual Taxpayer Identification number) of each spouse.  You will need to complete a Form W-7, Application for IRS Individual Taxpayer Identification Number (ITIN) (http://www.irs.gov/pub/irs-pdf/fw7.pdf).  This form will be attached to your tax return.  Turbo Tax does not support the Form W-7.  You can complete it outside of Turbo Tax.  You will have to print, sign and mail your return in if you are using Form W-7.

   3. For the first year you make the choice, you have to file a joint return. In later years you can file joint or separate returns. Married Filing Jointly will give you a higher standard deduction and has other benefits that are not available using a married filing separately status, but you do have to include your spouse’s worldwide income in joint income.

Choice 2

• Treat your spouse as a nonresident alien for tax purposes. You will not have to include your spouse's non-US income on your U.S. tax return. You will have to use the filing status of Married Filing Separately.

   1.  If you file as Married Filing Separately AND your spouse has no income from sources within the US AND is not claimed as a dependent of another US taxpayer, you CAN claim an exemption for your husband. You will need either a social security number or an ITIN for your husband to claim the exemption.

[newyorktax12]

@DaveF1006  thank you for your prompt response. What if my spouse has an SSN, do we still have to mail in our federal return?

He has an SSN that was issued when she did OPT after his Bachelor's degree 2 years ago. The  SSN states "VALID FOR WORK ONLY WITH DHS AUTHORIZATION". His OPT has since expired. 

[DaveF1006]

Yes, if your spouse does have an SSN, you can electronically file this return but if additional documentation is needed, you will need to mail the return. There is no way to attach the documentation directly to your electronically filed return. 

[newyorktax12]

@DaveF1006 thanks a lot.