Can a resident alien and a non resident alien file tax as - resident, married filing jointly?

[Vanessa]

Possibly, depending on if you were a resident for the entire tax year. "U.S. resident aliens can use the same filing statuses available to U.S. citizens. You can claim the same deductions allowed to U.S. citizens if you are a resident alien for the entire tax year." https://www.irs.gov/individuals/international-taxpayers/taxation-of-resident-aliens

Generally, a U.S. citizen or resident alien who is married to a nonresident alien uses the married filing separately filing status.  This is probably the simplest but may not result in the best tax benefits.

You do have 3 possible options

1.  You can make an election to file a joint return (she will need an ITIN)or;
2.  File as Head of Household IF you are maintaining a home for certain dependents or relatives other than your wife
3.  Married Filing Separately (if your spouse does not have an ITIN you will need to paper file your return and write NRA in the space for your spouses SSN)

To make the Election to File a Joint Return:

• You and your spouse are treated, for federal income tax purposes, as residents for all tax years that the choice is in effect. However, for Social Security and Medicare tax withholding purposes, the nonresident alien may still be treated as a nonresident alien. 
• You must file a joint income tax return for the year you make the choice (but you and your spouse can file joint or separate returns in later years).
• Each spouse must report his or her entire worldwide income for the year you make the choice and for all later years unless the choice is ended or suspended.
• Generally, neither you nor your spouse can claim tax treaty benefits as a resident of a foreign country for a tax year for which the choice is in effect. 

https://www.irs.gov/individuals/international-taxpayers/nonresident-alien-spouse

Filing As Head of Household Qualifications

Although your nonresident alien spouse cannot qualify you as a head of household, you can qualify if (1) or (2) applies:

1.   You paid more than half the cost of keeping up a home that was the principal home for the whole year for your mother or father for whom you can claim an exemption (your parent does not have to have lived with you), or
2.   You paid more than half the cost of keeping up the home in which you lived and in which one of the following also lived for more than half the year:

• Your unmarried child, grandchild, stepchild, foster child, or adopted child. A foster child will qualify you for this status only if you can claim an exemption for the child
•  Your married child, grandchild, stepchild, or adopted child for whom you can claim an exemption, or for whom you could claim an exemption except that you signed a statement allowing the noncustodial parent to claim the exemption or the noncustodial parent provides at least $600 support and claims the exemption under a pre-1985 agreement
•  Any relative listed below for whom you can claim an exemption: (please click on link to see list of relatives)

https://www.irs.gov/individuals/international-taxpayers/us-citizens-and-resident-aliens-abroad-head-...

Married Filing Separate

You may (BUT DO NOT HAVE TO) still be able to claim an exemption for your spouse if the following apply:

• ·        Must have no gross income for U.S. tax purposes,
• ·        Must not be filing a return,
• ·        Must not be the dependent of another taxpayer.
• ·        Has an ITIN

https://www.irs.gov/pub/irs-pdf/p17.pdf  (page 26)

For instructions on applying for an ITIN, click here https://www.irs.gov/individuals/how-do-i-apply-for-an-itin

[none1]

Can we do this on TurboxTax?

[hk999]

I have submitted my 2019 tax return (Married Filing Jointly) in Feb 2020 in a Tax Assistance Center along with ITIN application and  tried to submit the declaration to treat spouse as Resident Alien. But the officer in the TAC said the document is not required. My 2019 tax filing is still not processed. ITIN was approved. 

Now I am not really sure if both of us are considered as US Residents for 2019 tax year as we did not submit the declaration in the TAC center while submitting the Tax return and ITIN application. 

What is the best course of action to do now?

1.Wait for the 2019 return to be processed or 

2. Send the Declaration now  explaining the situation or 

3. File an Amended Return with the Selection 

[DaveF1006]

If your return has been properly prepared with the application, you should have received word by now that application has been properly prepared and your tax return accepted. the fact that neither of these has happened is worrisome to say the least. My advice is to enlist in the service of an acceptance agent that could expediate the W7 and filing process more smoothly. Please review this IRS link for more information. 

In the meantime, go ahead and prepare your return like you did last year. Reapply for the W7 and send in a letter stating you did this process with your 2019 return but have not been contacted regarding the W7 status or if your tax return has been accepted. 

Choice 1

• Treat your spouse as a 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.  You will need to 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.

Once you have completed your return, mail it along with your letter and supporting documentation again.  Be sure to send it certified with a return receipt proving that they have received everything you sent in the mail.  Send it to this address only. 

Internal Revenue Service
ITIN Operation
Mail Stop 6090-AUSC
3651 S. Interregional, Hwy 35
Austin, TX 78741-0000

[hk999]

Thanks for the reply, may be I am not clear but W7 was processed and ITIN was approved which was applied with 2019 return.

The actual 2019 return is still not processed as it is a paper filing. The issue I have a question is I did not attach the statement of declaration for spouse to be treated as Resident alien for tax purposes as the officer in the TAC center informed me that it is not required. 

So, as the return for 2019 is not processed am not sure if spouse is treated as Resident alien or not and am about e-file 2020 return.

[DanielV01]

That's a great question.  If you had proof that the return from 2019 had been accepted/processed, then it is not necessary to provide a second statement opting to have your spouse treated as a resident for tax purposes.  But without the accepted 2019 return, there is a degree of "limbo" involved.

Having said this, my recommendation is to go ahead and file (e-filing is acceptable) without any statement.  Trust that your filing for 2019 will cover your situation, and, if the IRS questions it, then you can provide a copy of your 2019 filing and the statement that you attached.  But it is not necessary to attach a statement year after year.

Your other option is to wait to file your 2020 return until you have confirmation that the 2019 return has been processed.  And if the filing deadline is fast approaching, you can file an extension as well.

[hk999]

Thanks for the reponse

The issue  I have is I did not attach the statement.

I went to a tax assistance center and applied ITIN. The officer at the tax assistance center took the ITIN application and 2019 tax return. He made copies of the W7 application and the 2019 return and gave me the copies. He took the original return and W7 form and informed me that they will be sent to IRS office from the tax Assistance center itself and we need not do anything. When I tried to submit the Declaration to treat spouse as Resident alien, he told us the system determined the status is ‘Married Filing Jointly’ and told no need of declartion.

So as the 2019 return is not still not processed I am not sure if my spouse is treated as Resident for 2019 tax year and the selection is applied from 2019and forward. W7 was processed and ITIN was delivered to us.

[JeffreyR77]

When you file a Married Filing Jointly tax return with a W7 for an ITIN issuance, the IRS processes the ITIN and applies the ITIN to the tax return that was provided. 

Your spouse was treated as a resident for tax purposes for 2019.