Thanks so much for your response. Would really appreciate your further thoughts on this.
My husband and I both have SSNs but my son does not have SSN/ITIN.
Can I make the election to file as a dual status alien under 7701 (b)(4) and then make an election 6013H to file as a resident alien for 2019 ? We moved in August 2019 from India. I will satisfy the SPT as on May 31 2020 - 1/3 of roughly 120 days = 40 days + 150 days in 2020.
I get better returns if I file jointly with my husband as a resident alien - std deduction of 24,400$.
Scenario:
- My husband and I are non-resident aliens in 2019 since we do not meet the SPT or green card test – We moved on 10 August 2019
- We then both take the first year choice under 7701 (b)(4) that makes us both dual status alien for 2019 – Non-resident alien from Jan 1 2019 to Aug 9 2019 and Resident alien from Aug 10 2019 to Dec 31 2019.
Page 7 of IRS Pub 519:
First-Year Choice If you do not meet either the green card test or the substantial presence test for 2018 or 2019 and you did not choose to be treated as a resident for part of 2018, but you meet the substantial presence test for 2020, you can choose to be treated as a U.S. resident for part of 2019. To make this choice, you must: 1. Be present in the United States for at least 31 days in a row in 2019, and 2. Be present in the United States for at least 75% of the number of days beginning with the first day of the 31-day period and ending with the last day of 2019.
If you make the first-year choice, your residency starting date for 2019 is the first day of the earliest 31-day period that you use to qualify for the choice. You are treated as a U.S. resident for the rest of the year.
This is the tricky part now:
Page 8 of IRS Pub 519 - Choosing Resident Alien Status If you are a dual-status alien, you can choose to be treated as a U.S. resident for the entire year if all of the following apply.
- You were a nonresident alien at the beginning of the year. – True in our case
- You are a resident alien or U.S. citizen at the end of the year. – Can we take it as true in our case because we took the first year choice or does this only cover resident aliens under Green card and SPT ?
- You are married to a U.S. citizen or resident alien at the end of the year. – Can we take it as true in our case because we took the first year choice or does this only cover resident aliens under Green card and SPT ?
- Your spouse joins you in making the choice. – True in our case
This includes situations in which both you and your spouse were nonresident aliens at the beginning of the tax year and both of you are resident aliens at the end of the tax year
If you make this choice, the following rules apply. • You and your spouse are treated as U.S. residents for the entire year for income tax purposes. • You and your spouse are taxed on worldwide income. • You and your spouse must file a joint return for the year of the choice. • Neither you nor your spouse can make this choice for any later tax year, even if you are separated, divorced, or remarried.
- The special instructions and restrictions for dual-status taxpayers in chapter 6 do not apply to you.
And I quote from Chapter 6, page 31:
Restrictions for Dual-Status Taxpayers
The following restrictions apply if you are filing a tax return for a dual-status tax year.
Standard deduction. You cannot use the standard deduction allowed on Form 1040 or 1040-SR. However, you can itemize any allowable deductions.
Head of household. You cannot use the head of household Tax Table column or Tax Computation Worksheet.
Joint return. You cannot file a joint return. However, see Choosing Resident Alien Status under Dual-Status Aliens in chapter 1.
Seemed logical to me and sequential evidences as per the IRS publication 519.
