Treating Foreign spouse as Part-time, full-time or Non-resident?

[amitabhbachan6]

Hello

I married outside U.S. Wife never been to U.S and neither she works. I including her on my tax return as MFJ and got ITIN number. But, what should I treat her state taxes? Full- time resident, Part-time resident or Non-resident on NY tax?

[pk]

@amitabhbachan6 , Before I can answer this I need the following information ---1. Are you a US citizen/Resident/Resident for Tax purposes and if not a citizen/ Resident then you visa and country of citizenship;  2. Your spouse's citizenship  -- I am assuming that she has a passport that was used for ITIN;  3. When did you marry and when did you get the ITIN issued  ( really trying to know if the ITIN is still valid); 4. Spouse is a resident of  which  country -- you said she has no income and that you provide for her support.

Generally a non-resident alien spouse  whom is a resident of one of the contiguous countries   ( Canada and Mexico) can file jointly with a US citizen/Resident/Resident for tax purposes.  There is a special exception also for India  under some circumstances.  Hence all the above questions

Namasate

pk 

[amitabhbachan6]

1. Are you a US citizen/Resident/Resident for Tax purposes and if not a citizen/ Resident then you visa and country of citizenship; .

A) I am US citizen

2. Your spouse's citizenship  -- I am assuming that she has a passport that was used for ITIN;  

A) Pakistan Citizen

3. When did you marry and when did you get the ITIN issued  ( really trying to know if the ITIN is still valid);

A)2019 (ITIN VALID)

4. Spouse is a resident of  which  country -- you said she has no income and that you provide for her support.

A)Pakistan

Yes, I know I can file as MFJ. But, I asked what resident status of her to put for state taxes. Non-resident or resident?

[pk]

@amitabhbachan6 , for the state purposes she is a Non-Resident since she has no abode in the state

[amitabhbachan6]

That's correct. But, few tax people said that I can put "resident" for her despite non-resident seems logic. Alos, on NY tax website it mention.....

"

The only exceptions to this rule apply to married individuals who file a joint federal return and:

• one spouse is a New York State resident and the other is a nonresident or part-year resident. In this case you must either:
  • file separate New York State returns using filing status; or
  • file jointly, as if you both were New York State residents, using filing status."

[pk]

@amitabhbachan6 , IMHO,

1. if you claim that your spouse is a resident or part year resident of NY when facts are that she has never even been admitted to the USA, this would be a lie.  If she had been in the USA, stayed in your home in NY and was  outside the country at the moment, then perhaps one could claim that her home is New York and therefore  she is a resident  --- for the period  that the Sate allows somebody to a temporarily absent Resident.

2. Furthermore , if the purpose of claiming spouse to be a resident is to get a tax advantage, that could be even more serious.

3. Her connection to the state is pretty tenuous even if  she is married to you whom lives in NY -- she perhaps should  show that she really intends to settle down here in the NY and something is preventing her currently ( like she is awaiting a visa from USICS.

[amitabhbachan6]

Thanks, So file as MFJ and mention her as non-resident? Since this seems valid. Also, spoke to NY tax rep and told whole situation they said non-resident would be ok..What you think..?

[pk]

@amitabhbachan6  I agree

stay safe

pk