Can I file jointed tax return if both my wife and I are F-1 visa and married in Feb.2018 in China.

[renlq112]

We are Chinese and hold F-1 visa. We married in China last year. Are we considered as married in US? If so, I first entered US on Dec. 23 , 2013 and my wife entered in Jun, 2014. I am classified as resident for tax purposes but my wife is not. Can we still use turbotax to file it.
Also, how should we apply the scholar tax treaty to the application (5000 exemption )
Thanks

[LinaJ2018 · Accepted solution]

Yes, you can file jointly. You are considered as married in the US and allowed to file jointly on your US taxes. You can use TurboTax to file.  However, you cannot e-file but must paper file. 

Since you are a resident and your wife is not, you can make an election to treat her as a resident. Please see Nonresident to resident. You can use the program to prepare all your tax forms, print them out and attach the statement to your paperwork to submit to IRS by mail. 

As far as the tax treaty, you will enter as a negative amount to offset your income which you have already entered.  Here are the steps (online):

• After sign in to your program, select Take me to my return 
• From the top, go to Wages/Income 
• Scroll down all the way to the Less Common Income section, under Misc Income 1099A, 1099C, select        Start
• Next screen, scroll down to Other reportable income, select Start
• On the screen, Other Taxable Income, enter info with a negative amount.  

[pk]

@renlq112
Having read through the above , I am bit uncertain about the above --- viz:   assertion of a treaty position ( e.g. exclusion of personal  income up to $5000 for students from china for a reasonable period) generally requires the taxpayer to be a  Non-Resident Alien - see instruction for form 8833. Thus it would imply that if you wish to avail of the $5000 exclusion for the Non-Resident Alien  spouse, she would need to file  form 1040-NR  AND NOT as a joint filer with a resident for tax purposes. To me therefore , either IRS would have to not accept the treaty position disclosure form 8833 and disallow the $5000 exclusion  for joint (&resident ) filer or require a 1040-NR for the spouse and a 1040 MFS filing for the  resident spouse.
I do not disagree with the technique of  exclusion suggested by @TurboTaxLina  but  just am not certain about the possibility of asserting a treaty position by a resident for tax purposes.

[LinaJ2018]

Tax treaty applies to both US nonresidents and dual residents(resident of the foreign country and the US)

[pk]

@TurboTaxLina , thank you . Absent any treaty time limitations, it stands to reason. Could you please point me to statute or IRS/Reg that clearly stipulates ( I did not find any clear stipulation nor any case law).  thank you again