Resident Alien

[Possi]

My client is a resident alien. His family lived here with him the entire year of 06. Wife and kids have SS#'s and went to school here. One went to college here, too.
In 07, wife and kids went home and dad still lives and works here. They are happily married and have a home they all share in Australia. They all spent enough time here in 07 that it was a MFJ return and claimed the kids.
In 08, they were not here enough to qualify under resident alien rules for income. (Not that they had any...)
They are only absent from him temporarily. He supports his family and his home in Australia.
If this is considered a temporary absence, I believe that he can claim his family on the tax return.
Can anyone help me with this? I am not getting it....
Thanks...
~possi

[Koss]

Resident Alien

You wrote:

In 08, they were not here enough to qualify under resident alien rules for income.

What rules are you referring to? Are you talking about the substantial presence test?

Those rules are used to determine whether a nonresident alien can elect to be treated as a resident alien for tax purposes.

If your clients are already resident aliens, then those rules are not applicable.

In general, resident aliens are treated just like US citizens for tax purposes. There are some exceptions to this principle, but they are few and far between.

Are the husband, wife and children all resident aliens? If so, I don't see any reason why you can't just do the return as if they were US citizens. In fact, they may not have any other option available to them...

BMK

[Possi]

Are the family members resident aliens?

That is my question.

Must the family members pass the substantial presence test to be claimed on the return?

[Koss]

Wife and kids

First we need to know whether the wife and kids are considered resident aliens under immigration law.

Resident Alien = Permanent Resident = Green Card Holder

These terms are synonymous.

You said they all have SSNs. That doesn't automatically mean that they are resident aliens. But the overwhelming majority of people who have SSNs are either US citizens or resident aliens. The most common exception is a foreign student, who has a visa that allows him to attend college or grad school, and also allows him to work. That guy's not a resident alien, because he's not "immigration track." He doesn't get to stay and apply to become a citizen. He gets to go to school, and then go back to his home country. But because his visa allows him to work, he gets an SSN.

You may asking the questions in the wrong order. If the wife and kids have green cards, then they are resident aliens under immigration law, and that means that they are resident aliens for tax purposes, regardless of how many days they were in this country...
unless they somehow lost their resident alien status, or voluntarily relinquished it. And that's pretty unlikely.

The substantial presence test is only relevant to someone who does not have a green card.

You need to know their status under immigration law in order to determine their status for tax purposes.

It's a little bit like filing status. Before you can determine someone's filing status for tax purposes, you first need to know their marital status under state law.

BMK

[Possi]

Burton, they are RA's

Burton, I just called my client and the wife and kids are still considered Resident Aliens under Immigration laws.

With that knowledge, I will claim them.

What pub is that? Another study for me.