Head of household filing status

[mooretax]

Taxpayer married to a nonresident alien from Mexico. They have one son together. His wife stays with him and their son all year. Taxpayers filed as head of household in 2013.
He decided to go to college in 2014. The clerk at the school knew he had a wife and a son.
She looked at his 2013 tax return and told him you were married and that you could not file as head of household. You needed to amend your tax return and submitted it to the school.
Taxpayer amended his tax return and claimed Married filing jointly with his nonresiden wife.
Taxpayer said he followed the below instruction. Why did he have to amend his tax return?
His wife had no income. He said there was nothing on the form to indicate that he did not
choose to treat the nonresident wife as a resident alien.


What is your thought for this situation?


Publication 17, page 23
Nonresident alien spouse. A taxpayer will be considered unmarried for Head
of Household purposes if his or her spouse was a nonresident alien at any
time during the year, and the taxpayer does not choose to treat the nonresident
spouse as a resident alien. However, the spouse is not a qualifying person for
Head of Household purposes. The taxpayer must have another qualifying person
and meet the other tests to be eligible to file as Head of Household. The
taxpayer will be considered married if he or she chooses to treat the nonresident
spouse as a resident alien.

[David1980]

I'd wonder more about the "nonresident" part of the wife's residency status. Here on a student visa or something like that maybe? But assuming she is in fact a nonresident, it seems like HOH would be fine?

[TaxGuyBill]

I agree with David. The non-residency is questionable (you will need to get the details from the taxpayer), but it's true, Head of Household is fine.


The "clerk" at a school isn't the best source for tax advice, and is just basing that on what she know about filing status for residents.

[jimfrombx]

Head of Household

"meet the other tests to be eligible to file as Head of Household." I believe not living with your spouse for last 6 months of year is one of those tests.

[taxea]

"His wife stays with him and their son all year" doesn't this make her a resident alien? Apply for an SS card for her. If he is married and she lives with him he is not HOH. His other option is MFS, not claiming her as an exemption, but claiming his son as a dependent.

[ATSMAN]

"His wife stays with him and their son all year" doesn't this make her a resident alien? Apply for an SS card for her. If he is married and she lives with him he is not HOH. His other option is MFS, not claiming her as an exemption, but claiming his son as a dependent.

I believe to be legally classified as a "Resident Alien" you must possess a "Green Card"!

[TaxGuyBill]

"meet the other tests to be eligible to file as Head of Household." I believe not living with your spouse for last 6 months of year is one of those tests.

Nope. They need to not live together for the last 6 months OR the spouse is a nonresident alien for part of the year.

https://www.law.cornell.edu/uscode/text/26/2#b

I believe to be legally classified as a "Resident Alien" you must possess a "Green Card"!

Nope. You can be a resident alien without a Green Card if you meet the Substantial Presence Test.

http://www.irs.gov/publications/p519/ch01.html#en_US_2014_publink1000222118

[Kram BergGold]

I looked it up

If the spouse is a NR Alien for any part of the year and they did not make the election to file a joint return then he can be H of H.
My guess is they did not attach the proper statement to the joint return electing to treat her a US resident so he could switch back to H of H. My guess is they did not report her worldwide income which could be another issue. If she was a Resident Alien at any time during the year he can't file as H of H as she lived with him during the last 6 months of the year.

[Brian EA]

This is what I came up with in my research

1. Nonresident Alien Spouse
If an individual’s spouse was a nonresident alien at any time during the tax year, and
that individual has not chosen to treat his or her spouse as a resident alien, he or she is
considered unmarried for head of household purposes. However, that individual’s
spouse is not a qualifying person for head of household purposes. An individual must
have another qualifying person and meet the other requirements to file as head of
household.

SequoiaCPE.com

I think the reason for asking the taxpayer to amend his return is that the clerk knows the individual; however the clerk does not know the taxpayer's status in terms of resident/non resident and the laws pertaining to the tax return. The taxpayer should refuse to amend his return and ask to speak to the clerk's supervisor .

Brian