Question

Foreign Spouse has SSN but living Abroad

Forum|Forum|3 years ago
November 20, 2022
2 replies
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My wife was in the USA from 2014 to mid 2021, and we filed a joint tax return for those years. She moved to Canada in mid 2021. I am a resident alien (on a non-immigrant visa). She has a SSN and has non-immigrant visa. She is residing in CANADA and Occasionally travels to the USA. Can I still file my tax return as married filing jointly and declare her CANADA income in my USA tax return or I need to select to file as married filing separately?

TurboTax Deluxe Online

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Anonymous_

Employee

@pk12_2 ?

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pk12_2

Employee

@ gur1, generally speaking, even if your spouse has moved to another country for US tax purposes you can still file jointly as long as you expose her world earnings to US taxes . In such a case depending on the exact facts and circumstances, her foreign income could be eligible for exclusion from US taxes ( up to a max set each year --- foreign earned income exclusion ). Please tell me more --- your citizenship, her citizenship; does she work in Canada for a local entity or remotely for a US entity or for US govt; what work visa do you have and she had ; is her US visa terminated; do you own home here in the USA etc. etc. I will circle back once I hear from you pk

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gur1Author

@pk12_2

Apologies for the late response. Please share your thoughts

Both my spouse and I are Indian citizens. She works in CANADA for Canadian entity.

I am on H1b. My wife has USA visa (H4). We have a rental house in the USA.

She did not pass the substantial presence test in 2022 but passed the substantial presence test in 2021,2019 and 2018

Given these details. Can tax file as Married Filing jointly in 2022? Also will we be able to use tax treaty and not get double tax even though when we are treating my spouse Nonresident as a resident? I read somewhere then when nonresident is treated as resident then tax treaty cant be used

DaveF1006

Yes, you may file married filing jointly under the conditions I will outline below. First though, let me answer your latter question. Your wife would not be able to apply the US/Canada tax treaty unless she is considered a Canadian resident since she is not considered a US resident any longer. Please read this Turbo Tax post for further information. Meanwhile here is how to report in your return.

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.

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.

@gur1

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