Married Filing Jointly??? Please HELP

[GreenApple123]

My son is a US citizen and he has married a UK resident 3 years ago.  They have been attending graduate schools in US and UK respectively so my son has been filing his tax return using "married filing separately" status.

My daughter-in-law visited my son in February 2020. Because of the COVID, she has been stuck in US. As a result, she has decided to apply for the change of status (permanent resident - Green Card) last May. Paperwork has been moving very slowly yet steadily and she is now waiting for the interview to be scheduled.

The question is: for year 2020 tax, can my son file "married filing jointly" since they have been living in US for almost the entire 2020? However, she has not received her Social Security Number yet. If using married filing jointly status, how can she enter the SSN? 

Thanks

[LinaJ2020 · Accepted solution]

Yes, you son can file Married Filing Jointly. For tax year of 2020, your daughter-in-law has met the Substantial Presence Test SPT to be treated as a US resident for tax purposes.  Click here: Substantial Presence Test  

Since your daughter in law does not have a SSN, she can apply for an ITIN Individual Taxpayer Identification Number.  They cannot e-file their return, unfortunately.  However, they can still use TurboTax to prepare their tax forms and paper file along with the ITIN application.  Here are the steps: 

• In the program, as you enter the information, leave the SSN space blank
• After entering all your information, print out returns and required forms ( write APPLIED in the spouse's space) 
• As TurboTax does not support the Form W-7, fill out the forms by following
•  https://www.irs.gov/Individuals/General-ITIN-Information and attach to other required  documentation
• Submit both the Form W-7 and your tax forms to IRS Austin location in Texas.  ( see Form W-7 instructions)

Although your daughter in law was not a US resident before 2020, your son could make an election to claim her as a resident to file Married Filing Jointly MFJ.  Read here: Nonresident to resident  Generally, Married Filing Jointly gives you more benefit to maximize your total refund.  See Jointly vs Separately. He will have to see if including his wife's UK income and take those deductions and credits allowed for MFJ status will generate a higher refund or lower tax due.  If it does, he can amend his returns for the past three years ( 2017-2019) to get more money back.  

Beginning with the 2019 tax year, he can e-file amended tax returns. He will still need to mail in the 2017 and 2018 amendments.  If he used TurboTax to prepare Form 1040-X, follow the software's instructions to e-file the amendment.

Steps to amend in TurboTax

How to file amendment

When he amends his returns, change his filing status to Married Filing Jointly and include his wife's worldwide income including those in UK to have the program recalculate the refund or taxes due.  While mailing his amendments, attach the statement of the election to his Form 1040-Xs.