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Spouse's Tax Return - What to do?

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  • Spouse's Tax Return - What to do?

    Hi all. Apologies if this has been answered elsewhere. I did a quick search, but couldn't find anything that answers my specific question. Someone will probably provide a direct link to a thread answering this...

    I entered the US in October 2018 on a K-1 visa. I married my USC wife in November 2018, and have now submitted forms for adjustment of status, employment and travel - my biometrics appointment is next week, though these are all being processed. I do not yet have a Social Security Number, and am not working/earning. I did however earn money in my home country (UK) for much of last year (until July 2018).

    My wife wants to submit her tax returns shortly, but we are not entirely sure how/what to submit on the 1040 with reference to our marriage and my dependency.

    As her filing status, must she choose 'Married filing jointly' or 'Married filing separately', and either way, what do I need to provide? I guess I am currently a dependent of her?

    Thanks in advance!
    MDrabik

  • #2
    Originally posted by MDrabik View Post
    Hi all. Apologies if this has been answered elsewhere. I did a quick search, but couldn't find anything that answers my specific question. Someone will probably provide a direct link to a thread answering this...

    I entered the US in October 2018 on a K-1 visa. I married my USC wife in November 2018, and have now submitted forms for adjustment of status, employment and travel - my biometrics appointment is next week, though these are all being processed. I do not yet have a Social Security Number, and am not working/earning. I did however earn money in my home country (UK) for much of last year (until July 2018).

    My wife wants to submit her tax returns shortly, but we are not entirely sure how/what to submit on the 1040 with reference to our marriage and my dependency.

    As her filing status, must she choose 'Married filing jointly' or 'Married filing separately', and either way, what do I need to provide? I guess I am currently a dependent of her?

    Thanks in advance!
    MDrabik
    Since you are married as of December 31, 2018, you guys must file 2018 taxes based on being married. Neither of you can file as "Single". You guys can only file as Married Filing Jointly or Married Filing Separately. A spouse is never considered a "dependent".

    If you haven't been to the US substantially before you arrived in October 2018, you would not pass the Substantial Presence Test for 2018, so you would by default be a nonresident alien for tax purposes for all of 2018. Nonresident aliens cannot file jointly. However, since your spouse is a resident at the end of 2018, you guys can choose to use Nonresident Spouse Treated as Resident, which makes you a resident alien for tax purposes for all of 2018, and you guys must file jointly. So your two choices are:

    1) You guys file as Married Filing Separately. You are a nonresident alien for all of 2018. Or
    2) You guys file as Married Filing Jointly. You are a resident alien for all of 2018.

    Which one you guys do is your choice. Married Filing Jointly will almost always result in less taxes than Married Filing Separately, sometimes substantially. However, note that resident aliens are subject to US taxes on their worldwide income. So you would have to report your British income on your US taxes in that case, but you would probably be able to use the Foreign Earned Income Exclusion (based on being outside the US for at least 330 days in the 12-month period before you came to the US) to exclude the first ~$100k of foreign earned income from the period before you came to the US.

    You could have gotten a Social Security Number during the 90-day period when you were in K-1 status, but it seems you missed that. So now you won't be able to get an SSN until you get an EAD or your green card. If you guys file as Married Filing Separately, according to the instructions, your spouse would just put "NRA" in the space for your tax number, and you likely wouldn't have to file yourself since nonresident aliens are only taxed on US income, and you didn't have US income for 2018. If you guys file as Married Filing Jointly, you would have to apply for an ITIN (with form W-7) together with your tax return filing. (Another option would be to first file as Married Filing Separately, then amend it to Married Filing Jointly when you get your SSN, so you don't have to deal with the hassle of applying for an ITIN.)
    Last edited by newacct; 01-29-2019, 02:57 PM.

    This is my personal opinion and is not to be construed as legal advice.

    Comment


    • #3
      Hi newacct.

      Thanks for the information.

      In that case, we will likely file jointly. Therefore, I am filing as a resident alien for all of 2018.

      I still have all my information for taxed income for the UK, so I should be able to report all of this.

      Hindsight is a wonderful thing. I would have ideally gotten a SSN whilst in K1 status, but it just didn't happen that way. I read many things online, one of which stated that it is often easier to apply for all three forms (adjustment, travel, employment) simultaneously. I've read that EADs now take ~150 days, so wouldn't necessarily have had a SSN yet even if I applied as early as I could have.

      Is the ITIN application much of a hassel? If I went this route, would I be applying at the same time as my spouse, or would she have to wait for me to have my ITIN before she can submit?

      Comment


      • #4
        Originally posted by MDrabik View Post
        Is the ITIN application much of a hassel? If I went this route, would I be applying at the same time as my spouse, or would she have to wait for me to have my ITIN before she can submit?
        ITIN application would have to be submitted together with the tax filing, not before. It is a hassle because you either have to mail in your actual passport (not a copy) with the ITIN application, or you would have to go to one of several IRS taxpayer assistance centers that can certify passports on-site for ITIN purposes (not all of the centers support this service).

        This is my personal opinion and is not to be construed as legal advice.

        Comment


        • #5
          Originally posted by newacct View Post
          ITIN application would have to be submitted together with the tax filing, not before. It is a hassle because you either have to mail in your actual passport (not a copy) with the ITIN application, or you would have to go to one of several IRS taxpayer assistance centers that can certify passports on-site for ITIN purposes (not all of the centers support this service).
          I see. I had read that. I will speak with my wife and see what she thinks. I have had a search and there is an "IRS-authorized Certifying Acceptance Agent" relatively close by that would at least circumnavigate having to send my passport away for several weeks.

          Thanks for your help. I really appreciate it.

          Comment

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