US Citizen Living Abroad Filing Head of Household w/NRA Spouse: Does IRS Require Spouse Info?

[selbym]

My bro-in-law is a US Citizen living abroad, married to an NRA and claiming their son as dependent (he is a US Citizen w/SSN). He's chosen to use the Head of Household filing status. 

Turbotax Free File asks for marital status, and if you put "married," even if filing Head of Household, you are required to enter spouse's SSN. However, IRS claims that they view the filer in our situation as "unmarried."

(From IRS page on U.S. Citizens and Resident Aliens Abroad - Head of Household):

"You are considered unmarried for head of household purposes if your spouse was a nonresident alien at any time during the year and you do not choose to treat your nonresident spouse as a resident alien."

So is it possible (read: legal/allowable) to bypass Turbotax's probing question about marital status when filing Head of Household when in the situation of living abroad and being married to an NRA? Does IRS require any information at all about NRA if using this filing status? Do I need to simply input for Turbotax purposes that my bro-in-law is single??

Thank you for your guidance.

[DoninGA]

No information whatsoever concerning a spouse, Name, SS number, income, etc., is entered on a tax return when the filing status is Head of Household.

[selbym]

Thank you! That was a lightening fast reply!

So I will simply indicate for Turbotax that Bro-in-Law is unmarried, since he's using the Head of Household status because this is how IRS views the situation: am I correct in my assessment?

[DoninGA]

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@selbym wrote:

Thank you! That was a lightening fast reply!

So I will simply indicate for Turbotax that Bro-in-Law is unmarried, since he's using the Head of Household status because this is how IRS views the situation: am I correct in my assessment?

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There is no reason to indicate he is not married when he is actually married when using the TurboTax program.  The software asks the questions to confirm that he is eligible for HOH filing status even if married.  Once confirmed he is eligible for HOH then only his information and the child's information is entered on the tax return.  

[Critter-3]

Read the rules here…first rule is you do not live with your spouse so you fail if you live together…after that nothing matters. https://www.irs.gov/publications/p501#en_US_2020_publink1000220775

[DoninGA]

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@Critter-3 wrote:

Read the rules here…first rule is you do not live with your spouse so you fail if you live together…after that nothing matters. https://www.irs.gov/publications/p501#en_US_2020_publink1000220775

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https://www.irs.gov/pub/irs-pdf/p501.pdf#page=8

Nonresident alien spouse. You are considered unmarried for head of household purposes if your spouse was a nonresident alien at any time during the year and you don't choose to treat your nonresident spouse as a resident alien. However, your spouse isn't a qualifying person for head of household purposes. You
must have another qualifying person and meet the other tests to be eligible to file as head of household.

[Critter-3]

Yes but if they live together overseas as the poster stated that then he cannot use head of household filing status.

[selbym]

Thank you DoninGA for your helpful replies. Just to test it again, I went back through the Turbotax Free File program we are using and honestly entered him as married, and selected HOH for his status, but the program still requires spouse SSN or it refuses to efile. Therein lies the rub really. We really reeeeeally want to efile because we live in the middle east and there's a pandemic and mailing things is dicey to say the least. 

So do we indicate unmarried for Turbotax Free File purposes? The system isn't going to place a mark somewhere on the tax return showing that we've said he's single, will it? There's an NRA spouse. Why should we erroneously apply for an ITIN for her and snail mail the form?

[DoninGA · Accepted solution]

@selbym Since the software is requiring a SSN or an ITIN for the NRA spouse when filing as a Married HOH to e-file, then go ahead and and change the status to Single and HOH so that you can e-file as HOH.

There is no requirement to have a spouse's SSN or ITIN on the tax return when filing as Head of Household.