File as resident alien filing jointly or non-resident alien filing single?

[deepakagarwal]

I have been working in India since several years. This year, I worked in India until 07/22/2023 and received Indian income on which Indian taxes would apply.

I moved to the United States on my H1B on 07/23/2023  and have been residing here since then (100% in 2023 from 07/23 - 12/31). Since I wasn't here for 182 days, I do not meet the substantial presence test and would thus be a non-resident alien.

As such, I cannot file under the 'Married - Filing Jointly' status as a tax resident, being a non-resident.

I will continue to be here in 2024 to be well over the period necessary to meet the substantial presence test, and thus, be a resident alien for tax purposes.

My wife has been here on her H4, but is back in India right now and doesn't have an ITIN.

I have the following questions:

1) Can I file for an extension using Form 4868 so that I can claim the "First Year Choice" to be a tax resident for the period I have stayed in the US in 2023 (starting 07/23), after I have completed 130 days in the US in 2024 (130 days in 2024 + 161 / 3 days in 2023 = 183) ?

2) Can I claim my spouse to be a tax resident in the United States in 2023 based on the "spouse of tax resident" category, after I can avail the first year choice, showing her worldwide income, even though she is in India currently (she has been in the US when 2023 ended) ?

3) Can I file for my spouse's ITIN based on (2), even though she is in India ?

4) How do I do all of this?

[DaveF1006]

Yes, you can make the first year choice to become a resident alien starting July 23. You may file an extension for your return and file it at the time you satisfy the Substantial Presence Test requirements. it seems like you have a good understanding of the requirement in your calculation.

You may claim your wife as a resident and you may file a W7, an application for an ITIN. The caveat to this is that she needs to sign the application which could be problematic if she is overseas. The only thing I can advise is to get this process started immediately if you wish for her to have an ITIN. Please read this IRS publication for instructions to file the W7 and get this process started without delay.

Please read the procedure  carefully for making the first year choice so you will be prepared when you are ready to file when you meet the conditions of the Substantial Presence Test. 

First Year Choice

[deepakagarwal]

@DaveF1006 

Thank you for confirming this. I'll go ahead and check what is required on my end to file the extension. 

Can I use TurboTax to file my 2023 tax when I meet the requirements to file as a resident alient based on the First Year choice in Jun/Jul?

Also, I saw on the IRS website that there are certifying agents in India wherein she can visit in person to apply.

Not sure how legit that is:

IRS International Acceptance Agents - India 

[DaveF1006]

Yes, you may use Turbo Tax once you meet the requirements to file as a resident alien. If the certification agents provide the correct documentation required, I see no reason why your wife would be denied an ITIN as these are Acceptance Agents certified by the IRS.