first year filing jointly and awaiting green card

[KurtB]

Dear Tax Professionals,

I am writing to request advice regarding my 2023 tax return. My wife and I were married in March 2023, and we are currently awaiting her green card, which is expected to arrive in mid-to-late October. Due to this, we have been unable to obtain her social security number and file our joint tax return.

In addition, I sold my home at a profit shortly after our marriage. We intended to file jointly to potentially reduce our capital gains tax.

We have already filed for an extension, allowing us to file by October 15th. Given the uncertainty regarding my wife's green card arrival, I am wondering if there are any options for filing jointly even if she does not have her social security number by the extension deadline.

Thank you for your time and assistance.

[kfenwick1]

You will not be able to file a joint return if your spouse does not have a SSN or ITIN.

Tax law states because you are married, you must file your taxes using either the Married Filing Jointly status or Married Filing Separately status.  Your spouse, will be considered a nonresident alien.

There are two options for filing your taxes.

Option # 1

Treat your spouse as a resident alien for tax purposes.   If you make this election you are required to include your 100% of your spouse's worldwide income on your US tax return and it will be subject to US taxes.  

To Make this election do the following:

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) Application for ITIN.  This form will be attached to your tax return.  Turbo Tax does not support the Form W-7.  You will have to complete it outside of Turbo Tax.  You will have to print, sign and mail your return if you file Form W-7.

3. For the first year you make the choice, you have to file a joint return. In later years you may 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.

Option 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.

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 spouse. You will need either a social security number or an Individual Taxpayer Identification Number (ITIN) for your spouse in order to claim the exemption. For information on, and instructions on how to obtain an ITIN see the IRS web pageIndividual Taxpayer Identification Number (ITIN).

[KurtB]

Thanks so much for the quick reply @kfenwick1 !