Recently immigrated family - File as resident or non-resident

[castellano_r]

Hello,

I have a wife and a son in Mexico and I have been filing my taxes in the U.S. as single because they do not have an ITIN or SSN.  I did not want to file for an ITIN for them because I feared the Immigration officers would think they lived in the U.S. and this would affect their immigrant visa process.

This year they will get their immigrant visas and SSN.

Assuming that happens before taxes are due, can I file 2021 taxes as married jointly using the SSN they only got this year?

[ErnieS0]

If you are married, the IRS doesn’t allow you to file as single, even if you are not claiming your spouse on your income tax return. You should be filing as married filing separately.

You can amend prior year tax returns. You do not need an ITIN or SSN for your wife if you mail in a married filing separate return. The IRS says, “If your spouse doesn’t have and isn’t required to have an SSN or ITIN, enter ‘NRA’ in the entry space below the filing status checkboxes.”

How do I amend my federal tax return for a prior year?

Social Security numbers become effective on the date issued> You cannot use a number issued in 2022 on your 2021 income tax return.

TurboTax partner Sprintax.com handles non-resident situations. Contact them.

[castellano_r]

She depends on me entirely. If I wanted to amend as married filing jointly can I apply for a retroactive ITIN for her and my son who also depends on me but I did not add him as dependent either because of the same concern about the ITIN?

Thank you

[ErnieS0]

No. You cannot file a tax return with a retroactive ITIN to claim a credit.

CPA Marshall Hunt in an article in The Tax Advisor wrote:

“Similarly, Sections 205 and 206 of the PATH Act added limitations on claiming the child tax credit, including the additional child tax credit, and the American opportunity tax credit by providing that a taxpayer identification number can be used to claim those credits only if it was issued on or before the due date of the return. 

"The new provisions do not specify whether the due date for these purposes is the original due date or the due date with a timely filed extension. 

"The major impact of this change will be on taxpayers using newly issued ITINs. As is the case with the provision affecting the EITC, these provisions disallow retroactive filing of either amended or original prior-year returns that were due before issuance of the ITIN to claim the child tax credit or the American opportunity tax credit.”

See ITINs: The Rules Have Changed