Texas Community property allocation for non resident alien spouse who did not live in the US in 2023

[surag0107]

I'm in a tricky situation. My wife is a resident of Canada, and lived in Canada the whole of 2023. I lived in Texas in 2023. Both of us lived apart the whole year. I'm filing with the "Married Filing Separately" status. Is there any part of my income that I need to allocate to her with the community property law?

[DaveF1006]

Yes. In viewing Publication 555,  the only income you would need to allocate is income such as dividends, interest, rents, royalties, or gains, as provided under your state's community property law. This income is allocated 50/50.

All other income earned by you is allocated to you only.

@surag0107 

[surag0107]

Ah okay. Unfortunately, I already filed my taxes and assigned all of dividends/interest etc. to me. :( Would you recommend I file an amendment? And in this case, would my spouse have to file a tax return as well (for her share of the above income)? She currently has no other income in the US, but lived and worked in Canada in 2023, with Canadian income.

[surag0107]

I do want to clarify though - all of the interest and dividends are from separate property (and not from community property). So I should be fine in that case, right?

[surag0107]

I see this in the 1040-NR instructions though - would you know if this bullet point means I can disregard interest and dividends too, and allocate all of it to just me?

• Income derived from the separate property of one spouse that isn't earned income, trade or business income, or partnership distributive share income. The spouse with the separate property must report this income on that spouse's separate return.

[RobertB4444]

In this instance, because she is a foreign national, I would leave it as is and not amend the returns.  You've been taxed on the dividends and that will be enough.  If the IRS wants more information they would send a letter.

@surag0107