married to a US gree card holder, do I have to file US tax form?

[fma2022]

Hello,

I married to a US greed card holder (husband). We live outside of US. I don't have any income earned in US.

Could my husband file tax as " married file separately"? I prefer not to file US tax at all. Is it possible?

thanks.

-Rita

[pk]

@fma2022 , if your husband has a valid greencard, married, has no children/ qualified dependent  for whom he maintains a home, then indeed he can file  MFS ( Married Filing Separate ). You as a Non-Resident Alien with no US connected or sourced income do not have to file US return.   However, the laws of the country where you are living may have an impact ---- some countries  look upon all income as marital resource.   

I am assuming that you do not wish to submit to US taxation because  at this time you have  income in your country of residence and you have never had a US SSN and/or visited USA. 

Which country are you from and where are you now residing?  Any children / and if so where were they born ?

is there more I can do for you ?

pk

[pk]

@fma2022 , if your husband has a valid greencard, married, has no children/ qualified dependent  for whom he maintains a home, then indeed he can file  MFS ( Married Filing Separate ). You as a Non-Resident Alien with no US connected or sourced income do not have to file US return.   However, the laws of the country where you are living may have an impact ---- some countries  look upon all income as marital resource.   

I am assuming that you do not wish to submit to US taxation because  at this time you have  income in your country of residence and you have never had a US SSN and/or visited USA. 

Which country are you from and where are you now residing?  Any children / and if so where were they born ?

Is there more I can do for you ?

pk

[fma2022]

Hi, pk:

Thanks so much for your quick reply. Yes, you are great in picking up correct information:

1. I do not wish to submit US tax return, because I have never had a US SSN or visited USA. I have no income from USA. 

2. My husband has a valid greencard, married to me last year.

I am from China and living in Shanghai. My husband has a 15 years boy born in USA living with us together. This boy will be his dependent. We do live together as a family. 

In this situation, is it ok for him to file MFS (claiming the boy as his dependent) and I elect not to file? 

The second question is: if I could file with him jointly in coming years, provided that I file w-7 applying a ITIN together with that tax return?

Thank again.

Best regards,

-Rita

[Vanessa A]

In this situation, is it ok for him to file MFS (claiming the boy as his dependent) and I elect not to file? Yes, but since you do not have an ITIN, he will need to print and mail his return and write NRA along with your name on his return.

if I could file with him jointly in coming years, provided that I file w-7 applying a ITIN together with that tax return? Yes, as long as he is considered a US resident for tax purposes you can file a joint return if you apply for an ITIN.  If you do this, you will need to report all of your income earned worldwide as you will be taxed as a US Resident as well, even if you are not in the US. 

[fma2022]

Hi, Vanessa:

Thank you very much for your clear explanation. I really appreciate.

Best regards,

-Feng

[pk · Accepted solution]

@fma2022 , while @Vanessa A  reply was generally  responding to the question you asked --- can your husband  ( a Valid Green Card holder ) file as  Married Filing Separate --  is correct  but it did not go far enough because it did not offer another choice that your husband has.   

As a US person ( Citizen/Green Card ) living in another country along with a child  related by blood or adopted, for whom your husband  maintains a home  and pays  more than 1/2 of his/her living expenses , he can claim Head of Household  filing status.  This offers him a more tax benign  situation  ( higher standard  deduction ) and also allows for child credit etc.

Note we all keep repeating a statement  --" with valid Green Card".  This is because  to keep one's Green Card valid  while one is abroad,  (a) one must return / touch  US soil at least once every 1 year or (b) get permission from INS to stay away for  Three Years.  In my time I applied before leaving the US shores  but it is possible to go to the local US embassy/consulate   ( in Shanghai ) and this cleared up-- else when he comes back to USA he will need a new visa  ( he would be deemed to have abandoned his  permanent residency).   I hope you were aware of this  and has taken care of this.  

In some very specific situations / countries one spouse  whom maintains a household and a Non-Resident Alien lives therein, the spouse can be a dependent -only for exemption purposes  ( which is currently zero  through 2025 ).

 Does that clear up all your issues  or is there more I can help you with?

Also note that this probably also answers  a similar question from Feng ( assume that is your spouse ).

pk

[fma2022]

Hi, pk:

Thanks a lot for your detailed explanation. It does clear all my questions. 

I do have another question. According to turbotax, if I live with my husband during the last 6 months of 2021, he could not be qualified as head of household. If that is the case, he could only file MFS. Is that true?

Thanks.

Best regards,

-Rita

[pk]

@fma2022  that is true  but you have to US person or in the USA --- since you are NRA, essentially you do not exist as far as HoA.  From his perspective, as a tax filer he has to stipulate that he is married  but  he is still maintaining a household for the child.   I do not recall exactly where in the statutes I saw this  but that is my understanding -- i.e. he can file as HoH

[fma2022]

Thanks a lot, pk. You have been very helpful!

[fma2022]

Dear pk:

How are you ? I appreciate you helps in April very much. 

One more question from the husband side: the software does not allow to do e-file with HoH, even if the wife is NRA. Since the wife is NRA, could I just change my marriage status to single and e-file as HoH?

I did came across some expert said one could “lie” to the software in order to do efiling. It should be legal since a NRA without income from USA is considered as “empty person” in the eye of IRS.

Just wanted to double check with you, if the husband could file as single and HoH in order to do e-file. (The wife is NRA, no incoming from USA, no intention to file US tax).

Thanks. 

-Feng

[fma2022]

Also, an interesting question: if the husband filed as married and HoH, he could pass federal check, but failed the state check (since the last date of living together passed June 31st). The state review simply won’t let the husband to use HoH status. If the husband filed as HoH, he will have to “lie” to the software by either filing as single or put the last day of living together to be earlier than 6/30. But with the married status, he will still have to do paper filing, without the possibility to do e-file? Is that correct? 

Anyway, if “single” is allowed to use for tax purpose, is it better to use “single” or altering the living date to be earlier than 6/30?

Thanks.

-Feng