Solved

H1B & H4 Married Filling Jointly+ITIN with less than 183 days in Substantial Presence Test

Forum|Forum|3 years ago
March 15, 2023
1 reply
0 views

I'm on H1B visa and my spouse is on H4 visa. We both came to US on Sep 2022 & We have been in USA for 113 days in 2022 and 0 days in 2021 & 2020. Can we file Married filing jointly as Resident Alien, with 6013(g) or 6013(h) election form and apply ITIN for my Spouse(as completed 180 days in US)? or only option is to File Married filing Separately(Resident or Non Res) for myself and apply ITIN next Year for my spouse next year. Appreciate your help.

Best answer by DaveF1006

No, because under section 603(g) and 603(h), one of you would need to be already a resident alien. The purpose of the form is to determine whether an individual who is a nonresident alien at the beginning of the taxable year and who is a U.S. resident married to a U.S. citizen or resident at the close of the taxable year, properly made the election to be treated as a resident of the United States for the entire taxable year under IRC § 6013(h) and IRC § 6013(g). You won't be considered a resident alien until you pass the Substantial Presence Test.

Both elections stipulate that one of the spouse must already be a resident alien to make this election thus this year you will both need to file as a 1040 NR this year. Next year if both of you remain in the country for the entire year, you may file as resident aliens because you will have been in the country for at least 183 days. Turbo Tax does not handle the filing for a 1040 non-resident but out affiliate at Sprint Tax does. Here is the link to their site.

Meanwhile, I would suggest your husband obtain his ITIN or SSN. Here is an application for IRS Individual Taxpayer Identification Number (ITIN) (http://www.irs.gov/pub/irs-pdf/fw7.pdf).

DaveF1006Answer

No, because under section 603(g) and 603(h), one of you would need to be already a resident alien. The purpose of the form is to determine whether an individual who is a nonresident alien at the beginning of the taxable year and who is a U.S. resident married to a U.S. citizen or resident at the close of the taxable year, properly made the election to be treated as a resident of the United States for the entire taxable year under IRC § 6013(h) and IRC § 6013(g). You won't be considered a resident alien until you pass the Substantial Presence Test.

Both elections stipulate that one of the spouse must already be a resident alien to make this election thus this year you will both need to file as a 1040 NR this year. Next year if both of you remain in the country for the entire year, you may file as resident aliens because you will have been in the country for at least 183 days. Turbo Tax does not handle the filing for a 1040 non-resident but out affiliate at Sprint Tax does. Here is the link to their site.

Meanwhile, I would suggest your husband obtain his ITIN or SSN. Here is an application for IRS Individual Taxpayer Identification Number (ITIN) (http://www.irs.gov/pub/irs-pdf/fw7.pdf).

**Say "Thanks" by clicking the thumb icon in a post**Mark the post that answers your question by clicking on "Mark as Best Answer"

J

JMV91Author

Thanks Dave,

What about "First Year Choice" considering we will stay full year 2023 and File myself as Resident as I paid US taxes and have my spouse 6013 h elect as resident to file MFJ + ITIN

In case if we cannot consider as Resident , Are we eligible to apply ITIN for my Spouse if we are filling Tax as 1040 NR ?

DaveF1006

Under the first year choice provision:

If you do not meet either the green card test or the substantial presence test for the current year (for example, 2022) or the prior year (2021), and you did not choose to be treated as a U.S. resident for part of the prior year (2020), but you meet the substantial presence test in the following year (2023), you can choose to be treated as a U.S. resident for part of the current year (2022) and be taxed as a dual-status alien for the current year (2022). To make this first-year choice, you must:

Be present in the United States for at least 31 days in a row in the current year (2022), and
Be present in the United States for at least 75% of the number of days following the 31-day period, beginning with the first day of the 31-day period and ending with the last day of the current year (2021). (For purposes of this 75% requirement, you can treat up to 5 days of absence from the United States as days of presence in the United States.)

So yes, according to this you may file as a US resident for the period of time you have spent in the US. in this case, you may file Married Filing Jointly. Here are your options.

• Treat your spouse as a resident alien for tax purposes. If you do this, you will need to include your spouse's worldwide income in your US tax return and it will be subject to US taxes.

To do this follow these steps.

1. Attach a statement to your tax return, signed by both spouses, that states that one spouse is a nonresident alien and the other is a U.S. citizen or resident alien, and you are choosing to both be treated as US residents for the tax year.

2. List the name, address and Social Security number (or Individual Taxpayer Identification number) of each spouse. If your spouse does not have a ITIN or SSN, you will need to complete a Form W-7, Application for IRS Individual Taxpayer Identification Number (ITIN) (http://www.irs.gov/pub/irs-pdf/fw7.pdf). This form will be attached to your tax return. Turbo Tax does not support the Form W-7. You can complete it outside of Turbo Tax. You will have to print, sign and mail your return in if you are using Form W-7.

3. For the first year you make the choice, you have to file a joint return. In later years you can file joint or separate returns. Married Filing Jointly will give you a higher standard deduction and has other benefits that are not available using a married filing separately status, but you do have to include your spouse’s worldwide income in joint income.

Choice 2

• Treat your spouse as a nonresident alien for tax purposes. You will not have to include your spouse's non-US income on your U.S. tax return. You will have to use the filing status of Married Filing Separately.

1. If you file as Married Filing Separately AND your spouse has no income from sources within the US AND is not claimed as a dependent of another US taxpayer. You CAN claim your husband as a dependent but will need either a social security number or an ITIN for your husband to claim the dependency.

2. You do not need the spouse's social security number for this option since they do not have one. Leave that blank on the return but you will need to print and mail in the return with an explanation stating that they do not have a SSN or ITIN.

Remember, you will need to file a 1040 NR for the period of time you were not in the country. Here is the IRS reference for filing as a dual status citizen.

Please, read the instruction given in step 2 regarding the ITIN application for your spouse in filing your 1040 resident return. You will need to check with sprint tax for ITIN requirements for your spouse for filing your non resident return for the period of time you were not in the US in 2022.

**Say "Thanks" by clicking the thumb icon in a post**Mark the post that answers your question by clicking on "Mark as Best Answer"