Non Resident Alien Spouse

[WhiteOleander]

I don't have alot of experience with filing a return for married people when one spouse lives in a foreign country.

This is a new client. She is an attorney. She lived for about 10 years overseas. She met and married her husband during that time. She has been in Texas for over a year now with the kids working as an attorney. But, they are not separated. He lives in France running a winery. He does make trips here for visits.

So, can I file her HOH? He has actually been here for some days during the last half of 2007. But, the arguement can be made that they have separate residences. Can I file her married separate? She does not want to include any of his income from France. So, married joint is not an option.

As I said, I do not have alot of experience in this. Is she allowed to file apart from him? Since he has no US source income, I don't think he would have a filing requirement.

Any help or guidance would be appreciated
Thanks.

[Snaggletooth]

Mfs

Oleander, I believe this is a MFS situation. MFJ is an option if client is willing to include all worldwide income for husband and wife.

I've got one situation very much like this and I determined long ago that MFS was the only workable alternative. On space provided for spouse's SS #, I have to enter "NRA."

HOH filing requirements appear to be satisfied in her case, but I keep looking for a "hook" somewhere because I believe they were written with domestic disharmony in mind, and not worldwide nomadic individuals. Doesn't mean she doesn't qualify for HOH, but would be careful.

[Kram BergGold]

H of H ok

I am assuming the spouse is a NR alien. If so H of H is ok.
On page 13 of the 2007 pub 17, sorry I don't have the 2008 pub 17, it says, if you do not elect to file joint treating the spouse as a resident alien and you meet the tests you can be H of H. If the spouse ever got a green card or met the test to be treated as a resident alien then you are out of luck.

[WhiteOleander]

I am not sure about HOH. He has been here for a visit. So, he actually was in the home here at least one day during the last 6 months of the year. And, I have heard that there was a court case several years ago that said since the husband was in the home the night before Thanksgiving, the wife could not file HOH. (that was the only day of the entire year he was in the home)

Also, I'm concerned about the dreaded "community property split" that is supposed to be done on MFS returns in a community property state. Since they're still married and "co-mingling" funds, is that going to present an issue?

I don't want to over think all of this, but, I don't want the IRS to audit and claim the t/p is hiding income.

[Kram BergGold]

Lassers

I looked it up in Lassers. It says you have to be one of 5 different things. The one I told you about is one o fthem as well as the living apart one. Again if the hubby is a NR alien with no US income, it appears you can file H of H.

[WhiteOleander]

Thanks for checking the pubs. I think she will be back in the office next week. I'll talk with her then.