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jotheturtle
Level 3

My non-citizen husband and I lived abroad part of the year. How do we deal with state residency?

I'm a US citizen. He's Canadian. We both lived and worked in California for many years. He quit his job in mid-2018, went to Canada, and came back to the US in Fall 2018 as a tourist. We gave up our apartment on Dec 31, 2018, and traveled around the US for several months. I quit my California-based job in February 2019, while we were already on the road (and not necessarily in California). We got married in the US at the end of March, and in early April moved to Berlin (Germany). We both worked in Berlin, and came back in early 2020 (he is now a tourist again). What does that do for our residency? Here's my guess - am I right?

- I think we're both US residents in 2019 for tax purposes, because we've been living in the US for the past several years.

- We don't get a foreign earned income exclusion, because we weren't gone long enough.

- I think I'm a California resident.

- I think we're supposed to go with married filing jointly.

- I don't know if my partner is a California resident, and if he isn't, what that means for us when we file. But I am guessing he is a California resident, even though he was only there as a tourist in 2019. Or that it's impossible to have us both be US residents but only one of us be a California resident, and so we just roll with it and treat him as a California resident. Or that it doesn't matter anyway because whatever we did outside of California is only subject to Federal taxes anyway and TurboTax will take care of that.

 

Anyway, if there's something special we have to do to address the fact that he wasn't really living in California last year (just traveling as a tourist), I'd appreciate if you could explain it to me!

11 Replies
KarenJ2
Expert Alumni

My non-citizen husband and I lived abroad part of the year. How do we deal with state residency?

Kindly provide a few more details:

 

  • Where are you living now that you are back in the US?
  • Have you purchased a home in another state since returning to the US?
  • Do you have a CA driver's license?
  • Do you have a car registered in CA?
  • Are you registered to vote in CA?
  • Do you have a bank account in CA?
  • How many days did you spend in CA in 2019?

From the information you provided, your partner will be a US resident in 2019 and you can file married filing jointly.

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jotheturtle
Level 3

My non-citizen husband and I lived abroad part of the year. How do we deal with state residency?

Thanks @KarenJ2! Here are my responses to your questions:

  • Where are you living now that you are back in the US? California. But he is here on a tourist visa.
  • Have you purchased a home in another state since returning to the US? No.
  • Do you have a CA driver's license? I do. His California license expired when we left the US in April last year, and he has not gotten one since.
  • Do you have a car registered in CA? No.
  • Are you registered to vote in CA? I am. He is not a US citizen.
  • Do you have a bank account in CA? Yes.
  • How many days did you spend in CA in 2019?  50 days each. But we were traveling the entire time, not living and working in one place. He was on a tourist visa that entire time.
KarenJ2
Expert Alumni

My non-citizen husband and I lived abroad part of the year. How do we deal with state residency?

You will both be CA residents due to the domicile rule in California.  You can have only one domicile at a time. Once you acquire a domicile, you retain that domicile until you acquire another. A change of domicile requires all of the following: • Abandonment of your prior domicile. • Physically moving to and residing in the new locality. • Intent to remain in the new locality permanently or indefinitely as demonstrated by your actions.

 

As you have not moved to a new locality where you intend to remain permanently,  you remain a resident of CA.

 

 

A CA resident is any individual who meets any of the following:

• Present in California for other than a temporary or transitory purpose 

• Domiciled in California, but outside California for a temporary or transitory purpose

 

2018 CA Guidelines for Determining Resident Status

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jotheturtle
Level 3

My non-citizen husband and I lived abroad part of the year. How do we deal with state residency?

Is that true even though he is a Canadian citizen? At no time in 2019 was he anything other than a tourist in California - and he's again here as just a tourist. He didn't have any home in California at any time in 2019, and as of December 31 2019 we were not certain whether we would like to come back to California permanently or not. While in 2018 he was clearly a California resident, in 2019 there was really nothing tying him to the state. If anything, if he had to go somewhere in an emergency it would be to his parents' house in Canada.

jotheturtle
Level 3

My non-citizen husband and I lived abroad part of the year. How do we deal with state residency?

Hi @KarenJ2 - I should add that we both had German work visas lasting 3 years, and so Germany considers us to have been residents there. But I don't know that California would recognize that.

ThomasM125
Expert Alumni

My non-citizen husband and I lived abroad part of the year. How do we deal with state residency?

If you moved to Germany and established a residency there, then you would have abandoned your California residency I would assume. Since your spouse is a Canadian and also a resident of Germany, he too would have a reasonable argument that he abandoned his California residentcy.

 

As are rule, your state of resident is the state you intend to return to if you are away temporarily. So, a lot would hinge on your intentions and physical location.

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jotheturtle
Level 3

My non-citizen husband and I lived abroad part of the year. How do we deal with state residency?

Hi @ThomasM125 ,

 

To clarify, neither one of us is still a resident of Germany. We are both back in California, though he is here as a tourist. We were intending to at least temporarily to return to California as of Dec 31, 2019 - but we weren't sure at that time that we would stay. I don't think I can claim that I am not a California resident. But can I be a resident and have him not be a resident for the entire year? If so, how would that work? How would we file our state taxes? We are married and filing jointly at the federal level. So how could we file jointly at the state level but not include my husband as a state resident?

 

Thanks!

ThomasM125
Expert Alumni

My non-citizen husband and I lived abroad part of the year. How do we deal with state residency?

Yes, it sounds like you are a resident.

 

If you file married-joint in California there is no way to split the resident state between spouses. You can file married-separate however, but you would need to prepare three federal returns in TurboTax to accomplish this, one for joint and one each for the separate state filings. You would then just file the joint return for the federal taxes and the two returns for California.

 

 

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jotheturtle
Level 3

My non-citizen husband and I lived abroad part of the year. How do we deal with state residency?

Got it, thanks @ThomasM125! But do you think he is a resident of California? If he is, then we don't need to deal with 3 separate federal returns. If he is not, then maybe it's worth filing separate returns for California - provided that savings from filing separately in California are significant enough to bother.

ThomasM125
Expert Alumni

My non-citizen husband and I lived abroad part of the year. How do we deal with state residency?

It seems he is not!

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jotheturtle
Level 3

My non-citizen husband and I lived abroad part of the year. How do we deal with state residency?

Thanks @ThomasM125 . For my separate state filings, you're saying I need to create two separate federal returns, not one federal return that's married filing separately? In that case, do I fill out each federal return as married filing separately, and simply exclude separate property? Or do I file them as Single?

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