Non-Resident Spouse w/ Substantial Presence Test. Can I file jointly?

[4lcollins]

Hi,

My spouse is a non-resident alien who has been living in the US since late 2020 on an F-1 visa (we are working on their green card). That being said, they have been in the US for 64 days this year, every day in the last year (2021), and 146 days in 2020. They have no foreign income or assets. Thus, it seems they pass the Substantial Presence Test.

Does that mean we can file a joint return on TurboTax with no repercussions? Or do I need to take additional actions?

Thank you!

[pk · Accepted solution]

@4lcollins , assuming that you are  yourself a US person ( Citizen / Green Card ) then yes you can indeed file joint with your spouse  with :

(a) spouse( he/she) will lose his/her  "exempt" status,  his/her world income would be exposed to US taxation; any treaty benefits ( tax treaty between US and that country  for students ) would  be quenched / cannot be asserted

(c) spouse will need a tax id  ( ITIN issued by IRS or SSN by Social Security Admin  if eligible )

(d)  this will allow preparation of  return using TurboTax  and sent  by mail with an attached request  ( signed by both spouses)  for the spouse to be treated as a Resident for Tax Purposes.

does this help or do you need more help on this ?

pk

[4lcollins]

@pk Thank you! If you could give a little further clarification on some of the points, that would be great.

On part A, the "exempt" status refers to social security taxes and the like, right?

Can you explain more on part D? Would need to send a request by mail to the IRS? Or who would I send it to in this case?

[pk]

@4lcollins ,

"exempt" status  here means  exempt from counting days present in the USA for  substantial presence test.  A person on F-1 generally is allowed  five  calendar years of exempt status.   Thus  for your spouse on  requesting to be treated as a  resident for tax purposes for the year , would mean the termination of the exempt status and  counting the days present towards SPT. As a resident for tax purposes, world income of the person comes under the purview of the US taxes.

 The request to be treated  as a resident for tax purposes ( if he/she already has a tax id -- ITIN or SSN ) is a letter requesting such treatment, signed and dated by both you and your spouse.  As noted earlier , because this  attachment is not supported  as part of the normal attachments , you have to print, sign/date your return, attach this letter and then file by mail.  This also means  that while you get the benefits of MFJ filing, your refund may be delayed because IRS' limited resources to handle mailed returns.

Does this help ?  Do you need more help -- will be happy to provide that ?

pk

[4lcollins]

That’s perfect. Thank you for the help!