ITIN for Non-Resident Alien with US Citizen Spouse

[spilpile2]

Hello All,

A bit of conflicting information - so would a bit of clarity.

I am a U.S. Citizen - residing in US and earning here. I got married outside of the U.S. in 2021 and have filled my spouse for an immigrant visa (will take 1-2 years, possibly more). 

I am filing my taxes now as "Married filing Separately" as my Spouse does not have an ITIN. 

My questions:

1) Can I file as MFS now, and amend my return later once she gets her SSN after 2 years? How does the refund process work?

2) Would filing as MFJ now be a better idea? If so - How can I apply for ITIN and make sure to get it before the tax due date? 

Issue with ITIN: I filled for Visa with her new married name, and her passport is in her maiden name (Marriage certificate is proof of name change). Is this okay? Or will she need to update her passport (a long process in her home country). 

Can I apply for ITIN and MFJ concurrently, or do I need ITIN before filing? 

Any advise on how to proceed would be appreciated.

[DavidD66]

Yes, you can amend a return to change from married filing separate to married filing joint but not from married filing joint to married filing separate unless you do so prior to the original filing deadline without extensions.

It's impossible to say for sure whether or not you would be better off filing separately or jointly without more information than is appropriate for this site.

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.

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. If your spouse has a social security number you will use it.  If not, you will need to apply for a number using Form SS-5.  If your spouse is not eligible to apply for a Social Security number, 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.

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:

• Internal Revenue Service
• ITIN Operation
• P.O. Box 149342
• Austin, TX 78714-9342

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.

[spilpile2]

Hello David,

Thank you for your response. A bit of a stupid question:

What is the difference between treating  my spouse as a Resident alien vs. NRA? She has no international income as she is a student, but I would like to get the MFJ benefits if possible.

In both options below - you stated to file for W-7, so a bit confused as MFS I thought you didn't need an ITIN/SSN.

@DavidD66 

[spilpile2]

David - another question.
You said I should be able to amend my return. 

But after reading the below "

21.6.1.4.1 (02-04-2022)

Married Filing Separate, Single, or Head of Household to Married Filing Joint Research" 

It states that ITIN/SSN should be established prior to the due date of the return. Would this mean that I could not amend the return later, as she will not have an ITIN before due date?

https://www.irs.gov/irm/part21/irm_21-006-001r

@DavidD66 

[DaveF1006]

You would need her social security number or ITIN if she needs to file a 1040 NR to report US income or if you claim her as a dependent.

Remember if you file separately and by mail, you will need to attach a cover letter to your return explaining why the SSN or ITIN is missing. if your spouse lives in the US with you, it may be a good idea for her to apply for a SSN through the social security administration or use the W-7 to apply for an ITIN.

As far as differences between treating her as a resident alien for tax filing purposes or not, there are numerous advantages to filing jointly as a Resident Alien or an NRA.

1. There is a much higher standard deduction. The standard deduction for married couples in 2022 is $25,900 versus $12,900 for Married Filing Separately.
2. If you have children, the child tax credit could be greatly reduced as well as the Earned income Credit (EIC).
3. You would not receive an American Opportunity Tax Credit if you are trying claim an educational credit.
4. if you have investment income such as stocks and bonds, you could only claim an investment loss of $1500 versus $3000 if you file Married Filing jointly.
5. None of this may be relevant to you but illustrates why Married Filing Joint is a better option.

In answer to the post that you just submitted, this applies that you have a three-year period to file a joint return after filing a Married Filing Separate in the first year.  if you file Married filing Separate this year, you have three years to file a married Filing joint return or you may lose this privilege beyond that three year period. This is to encourage you to apply for the SSN or ITN for your wife and start filing jointly after the first year election. 

Some of this may be confusing though and don't hesitate to write back if you are unclear about anything. We are here to help.

@spilpile2 

[spilpile2]

@DaveF1006 

So per the latest rule from IRS - 
"To establish a joint name line, a Taxpayer Identification Number (TIN) is needed for both spouses. Acceptable TINS include a Social Security Number (SSN), Individual Taxpayer Identification Number (ITIN) or Internal Revenue Service Number (IRSN), and should be established on or before the due date of the return they are filing".
Does this mean if I apply MFS this year, than my spouse will need to have SSN/ITIN prior to April 15 if I have to make an amendment in the future? 
Or is it okay to file MFS this year, and get ITIN/SSN later (when she arrives to the US) and we can amend?

Just a bit worried with the quote posted as it seems like it is stating you can only amend from MFS to MFJ if you had a SSN/ITIN prior to the original due date. 

[DaveF1006]

No, this does not mean she will need it this year and this does not specifically mean if you decide to amend in the future. You can file this year Married Filing Separately without the SSN or ITIN. Also according to this IRS source, you have three years form the due date of this year to amend the return to Married Filing jointly.

According to this Turbo Tax source, you may file this year married Filing Jointly by attaching a W7 to the return and supply all supporting documentation.

As I stated in my previous post, 21.6.1.4.1  (02-04-2022)  refers to the fact that you have up to three years to file a Married Filing Jointly Return after making the first year's election to file separately. When you decide to file Married filing Jointly, you must have a valid ITIN or SSN to file this type of return.  This includes filing an amendment. 

@spilpile2