1040 return

[TAX]

Client status: Married - from India

Taxpayer = H1 visa. has w-2. all taxes (ss, med etc. with held on w-2)
Spouse = J1 visa. No tax withheld for ss & med.

Both were in US for entire 2006 - for Presence Test purposes

Can I file reg joint return or do I need to file 1040nr for each?

[GIMoe]

Legal Status

Client status: Married - from India

Taxpayer = H1 visa. has w-2. all taxes (ss, med etc. with held on w-2)
Spouse = J1 visa. No tax withheld for ss & med.

Both were in US for entire 2006 - for Presence Test purposes

Can I file reg joint return or do I need to file 1040nr for each?

I misread original post and am retracting my statement -- apologize for any confusion..

[Holland]

J-1

I would think that since they do have visas, they would be considered legal residents and therefore qualify for the 1040.

Please look up J-1 and residency status.

Christopher Mewhort, EA, CGA
mewhorttax.com

[GIMoe]

Residency

Please look up J-1 and residency status.

Christopher Mewhort, EA, CGA
mewhorttax.com

J-1 status is nonimmigrant and is a nonresident alien.

Ironic thing is that I knew that from dealing with clients that employ Au-Pairs who normally enter on a J-1 Visa, but for some reason, completely glanced over that when reading original post. -Apologies for any confusion.

[erchess]

I know I have a lot to learn before

I do a return for someone who even might be a NRA but I would appreciate answers to these questions.

1. Am I right in concluding that a 1040NR cannot be filed MFJ?

2. Assuming that spouse has to file 1040NR and that they have a valid marriage in their country of origin, is the spouse stuck with MFS unless of course he or she qualifies to be considered unmarried?

3. Does the NRA status of the first spouse change anything relative to the RA or Citizen's qualifying to be considered unmarried?

I'm just curious about these points and I promise to read extensively before I do an NRA return. One thing I do know is that filing a 1040 when you should have filed a 1040NR is grounds for deportation and a permanent ban on coming back.

[TAX]

Election to be MFJ

Should I file 1040NR for Spouse on J1 vias and 1040 MFS for Taxpayer who is on H-1 Visa

Or can I elect to treat both as US res. and file joint return - I think there is a election available but I am not sure.

Thanks.

[TAX]

J-1 status is nonimmigrant and is a nonresident alien.

Ironic thing is that I knew that from dealing with clients that employ Au-Pairs who normally enter on a J-1 Visa, but for some reason, completely glanced over that when reading original post. -Apologies for any confusion.

Should I file 1040NR for Spouse on J1 vias and 1040 MFS for Taxpayer who is on H-1 Visa

Or can I elect to treat both as US res. and file joint return - I think there is a election available but I am not sure.

Thanks.

[GIMoe]

Pub 519

Should I file 1040NR for Spouse on J1 vias and 1040 MFS for Taxpayer who is on H-1 Visa

Or can I elect to treat both as US res. and file joint return - I think there is a election available but I am not sure.

Thanks.

Even though, according to Pub 519, the presence test does not apply to someone on a J-visa, you can elect to treat both as U.S. residents for tax purposes.

Nonresident Spouse Treated as a Resident

If, at the end of your tax year, you are married and one spouse is a U.S. citizen or a resident alien and the other spouse is a nonresident alien, you can choose to treat the nonresident spouse as U.S. resident.

...

If you make this choice, you and your spouse are treated for income purposes as residents for the entire tax year. Neither you nor your spouse can claim under any tax treaty not to be a U.S. resident. You are both taxed on worldwide income. You must file a joint income tax return for the year you make the choice, but you and your spouse can file joint or separate returns in later years.

How To Make the Choice

Attach a statement, signed by both spouses, to your joint return for the first tax year for which the choice applies. It should contain the following information:

-- A declaration that one spouse was a nonresident alien and the other spouse a U.S. citizen or resident alien on the last day of your tax year, and that you choose to be treated as U.S. residents for the entire tax year.


-- The name, address and identification number of each spouse. (If one spouse died, include the name and address of the person making the choice for the deceased spouse.)

The way I read that is the election can be made to be treated as a U.S. resident for tax purposes.

[TAX]

Even though, according to Pub 519, the presence test does not apply to someone on a J-visa, you can elect to treat both as U.S. residents for tax purposes.



The way I read that is the election can be made to be treated as a U.S. resident for tax purposes.

Thank you very much for your help!