Resident Alien Spouse

[JDW]

After reading Pub 519 and TB at a loss on how to file 2020 return for the following;

Taxpayer is a US citizen, marries nonresident alien Sept 2019
Alien spouse obtains SS# and Green card, July 2020 and Nov 2020. Green card is valid for 2 years, conditional being married to US citizen
Alien spouse in the US from Aug 2019 and until July 2, 2020 at which time she leaves the US permanently for former Eastern European home
Taxpayer and Alien spouse granted divorce March 2021
Alien spouse has no US income in 2019 or 2020 and no foreign 2019 income. Appears to have some foreign income in 2020 but unsure of amount and having difficult time obtaining.

For the 2019 tax return, filed MFJ and claimed the nonresident filing as resident election.

Regarding 2020 tax return, and what I'm trying to determine of the following;

File MFJ, use the same election for 2020 as used in 2019, since the alien was a nonresident at first of year and resident alien at end of year, or
The alien has a "Last of Year of Residency" of July 2, 2020, when she left for the remainder of 2020...have to include a statement to establish residency termination date and it would be
a Dual Status Tax Return.

Any assistance would be appreciated, thank you.

[Dude]

You did not mention the date the former spouse/alien arrived in the U.S. If she passes the substantial presence test she could be a resident for tax purposes.

https://www.irs.gov/individuals/international-taxpayers/determining-alien-tax-status

[JDW]

She arrived Aug 2019, did not pass substantial presence test on 2019 but does in 2020, along with green card obtained in 2020. But she left July 2020 and will not return. Plus we dont have her 2020 income in Eastern European home after she left.

[Dude]

Do you know the type of visa the wife entered on? Assuming it was one that allowed dual status (and not a student visa) she qualifies to be treated as a resident in the first year if they choose. Second year they must file MFJ (since she left in July) and spouse would still be considered a resident for tax purposes

https://www.irs.gov/individuals/international-taxpayers/residency-starting-and-ending-dates

However, your residency ending date is the last day during the calendar year that you are physically present in the United States if, for the remainder of the calendar year:

• your tax home is in a foreign country (cf. Rev. Rul. 93-86); and
• you maintain a closer connection to that foreign country than to the United States (cf. Treas. Reg. § 301.7701(b)-2(d)).

The bigger headache here is determining the foreign assets and income since a MFJ must be filed.

[JDW]

Thanks Dude. Appears residency date of July 2, 2020, her last date in US as she meets the two criteria for the remainder of 2020. Another headache, is the statement required to establish residency termination date as of July 2 2020.

[JDW]

...clarify her residency termination date of July 2, 2020

[Dude]

That would be the visa stamp, but I am sensing the couple is not communicating. You may also want to consider an innocent spouse form proactively against any fallout from her foreign income which does not look like is being reported.