My question is what is the proper way to file.
He was living and working in Mexico all year and paid his taxes there. He does not meet the criteria of the 183 days and did not receive any income in the USA during 2023. I am claiming him as part of my HSA, for the months of 2023 where we were married, September-December.
Should I file jointly and declare he has no income? or should i file separate and then would he need to present his own filing even though he would not have anything to declare.
Thank you for the advise
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If your husband working in Mexico all year it would probably be best to file separate. If he did not earn any income while in the US, he would not have to file a tax return. Since you were married on December 31 you have to file as MFJ or MFS. As a US Citizen or a Resident Alien, you have two choices in filing your taxes.
Option 1
Treat your spouse as 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.
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.
https://www.irs.gov/Individuals/International-Taxpayers/Nonresident-Spouse-Treated-as-a-Resident
If everyone on the tax return has a social security number or ITIN, you should mail your return to the address listed in the 1040 instructions. Tax returns with a Form W-7 should be mailed to the Austin TX address.
A tax return accompanied by one or more W-7 forms cannot be submitted electronically. You can submit it in person at any IRS Taxpayer Assistance Center that performs in-person document reviews; most major cities have such assistance centers, and there is at least one center in every state.
You can also submit tax returns with W-7 forms by mail to:
According to the IRS, it takes 6 to 10 weeks to obtain an ITIN. An ITIN will expire at the end of the year if it is not used on a federal tax return in the last 3 years.
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