Filing Status

[DaveinTexas]

How should a "married couple" file in this situation.

1. Man and woman legally married
2. Man is legal citizen with SS#
3. Woman is resident alien with TIN, no SS#
4. They have 2 children together
5. State of residence: TEXAS

Can he file HOH instead of MFS or MFJ because of her lack of a social security number and claim her as a dependent?

Also, as you know, if they file MFJ or MFS, they no longer qualify for the Earned Income Credit. The woman does earn any income.

I think I already know the answer; I just don't like the answer.

TIA.

[Koss]

Nonresident Alien Spouse

Your client can use Head of Household filing status, but that won't change the fact that he can't claim EIC.

In theory, HOH will be worse than MFJ, because the standard deduction is lower, and he will lose the personal exemption of his spouse.

Either way, he won't be eligible for EIC.

The text below comes from Pub. 17, page 23, top of the third column:

Nonresident alien spouse. You are considered unmarried for head of household purposes if your spouse was a nonresident alien at any time during the year and you do not choose to treat your nonresident spouse as a resident alien. However, your spouse is not a qualifying person for head of household purposes. You must have another qualifying person and meet the other tests to be eligible to file as a head of household.

Earned income credit. Even if you are considered unmarried for head of household purposes because you are married to a nonresident alien, you are still considered married for purposes of the earned income credit (unless you meet the five tests listed earlier). You are not entitled to the credit unless you file a joint return with your spouse and meet other qualifications. See chapter 36 for more information.

Burton M. Koss

[Eli]

I don't think they do either

It's MFJ or MFS either way they don't get the EIC. If she's working on getting her residency, it might benefit her to file MFJ (just a guess).

Eli

[New York Enrolled Agent]

Burton
You wrote: "Your client can use Head of Household filing status, ..."

The original post said the wife was a RESIDENT alien. Perhaps, I'm misreading something but I don't see how the TP could use what you posted from Pub 17.

[Kong]

For Dave in Texas

Dave if husband is U.S. Citizen, why is it that wife is not Legal resident alien?

You say she has Itin Number. With Immigration if all paper work is filled out properly she should have employment autorization within 90 days. Then she could apply for a Valid Social Security Number. Then file return MFJ and couple would be elgible for EIC.

Now if you file return now, show her as spouse INS looks for this during interview. No EIC
but once approved you go back and amend 3 years worth of returns, if they have been married this long.

[Koss]

Good Catch

Burton
You wrote: "Your client can use Head of Household filing status, ..."

The original post said the wife was a RESIDENT alien. Perhaps, I'm misreading something but I don't see how the TP could use what you posted from Pub 17.

The other post is correct. They should file MFJ, and then amend the return after she gets a valid SSN.

Or file an extension.

Or get the facts straight. Now that I have re-read the original post, I'm asking the same question:

If she is a resident alien, why doesn't she have a social security number?

Burton

[DaveinTexas]

Sorry to confuse

The spouse is a non resident alien. Sorry to mix up the terminology.

So, in this case, is the husband able to file as HOH and claim only his children as dependents?

In this situation, the wife would not be listed at all

TIA

[Kong]

Purpose of filing return

I educate my clients with the following when preparing a tax return, we are preparing a tax return according to the rules and regulations of the Internal Revenue Service.

We are doing so to comply with the code. We are interested in getting you the client the biggest refund available to you legally.

Dave you could look the other way, file HOH but what happens if their is an audit?

When INS tells him to amend his incorrectly filed tax return. By the way wife will be in limbo during this time.

You dont need this client if he is giving you so much flack, because he wants EIC.

Beware

[Koss]

Head of Household

I educate my clients with the following when preparing a tax return, we are preparing a tax return according to the rules and regulations of the Internal Revenue Service.

We are doing so to comply with the code. We are interested in getting you the client the biggest refund available to you legally.

Dave you could look the other way, file HOH but what happens if their is an audit?

When INS tells him to amend his incorrectly filed tax return. By the way wife will be in limbo during this time.

You dont need this client if he is giving you so much flack, because he wants EIC.

Beware

Kong, you have not read the text that I cited from Pub. 17 in my earlier post.

The Internal Revenue Code allows him to use Head of Household filing status.

But it still won't get him EIC.

In my earlier post, I concluded that MFJ would be better in theory, because of the higher standard deduction and the spouse's personal exemption. In practice, in this case, it may not make a difference, because if the income is low enough for EIC, the increased standard deduction and extra exemption may not mean anything.

Burton M. Koss