IMMIGRANT VISA

[ryandgracey 2]

My hubby says that I qualify for an ITIN that I can file with the IRS, and he can claim me as a dependent.

1. Am I qualified to file an ITIN? I am a CR1 visa holder, still here in the Philippines, and when I read the instructions on how to fill up the form , it says there to list only a non-imigrant US visa.

2. At this point in time, am I eligible for a SSN? ITINs are for those who are ineligible for a SSN, right?

3. Can my hubby file married/joint and claim me and my daughter as dependents?

AFter reading thru the W7 and the guide for aliens, we are even more confused now.

Thank you for your input guys.

[payxibka 10,044]

My hubby says that I qualify for an ITIN that I can file with the IRS, and he can claim me as a dependent.

1. Am I qualified to file an ITIN? I am a CR1 visa holder, still here in the Philippines, and when I read the instructions on how to fill up the form , it says there to list only a non-imigrant US visa.

2. At this point in time, am I eligible for a SSN? ITINs are for those who are ineligible for a SSN, right?

3. Can my hubby file married/joint and claim me and my daughter as dependents?

AFter reading thru the W7 and the guide for aliens, we are even more confused now.

Thank you for your input guys.

1) married is the requirement, CR1 visa holder or not

2) No, you must have entered the USA to be eligible for SSN

3) He is able to file with you as his spouse, but for a dependant (amongst many things) needs to be present in the USA

[Boorai 0]

I am Gracey's husband:

I just got off the phone with the ITS and yes, we CAN file married/joint AND claim our daughter as a dependent.

A non-resident alien(defining resident as actual presence inside the Us or not) can file for a joint return if married to a USC, even though they have ever step foot inside the US. All world-wdie income will be taxed.

What is needed:

1) the current year's 1040

2)W7 - application for ITIN

3)notarized copy of passport

4)a statement signed by both spouses proclaiming desire to be treated as a US resident(for tax purposes)

Read Publication 519. Can be found with an internet search.

Why woudl anyone want to do this???

Use us for example:

1)Filing Single(even though I am not)..my return is about $1700

2)Filing Head of Household...my return is about $3800

3)Filing Married Joint with one dependent....about $6200

HUGE difference!!

So, for those who never considered this, please read and pass along. My CPA was not aware of these last year and we lost out on a couple thousand dollars(thoug I think i can file an amendment to that, but not for certain).

For an absolute answer have your States side spouse call the IRS directly and ask specific question,,,,they are helpful and will give a definetive answer.

[dale_trisha 3]

3. As stated in the previou response you can be claimed by either waiting for your SSN or by electing to get a ITIN through a W-7 form. For your duaghter Pub 501 needs to be consulting. There are three tests that need to be looked at.

[payxibka 10,044]

Sorry to bust your bubble: The dependant test is 5 pronged and you must meet pass all 5... You will fail test #2

The IRS helpline is like the USCIS helpline ... not always helpful

You may claim a dependency exemption for a qualifying child or a qualifying relative. A child who is a qualifying child of any taxpayer for the tax year is not your qualifying relative. For the definition of a qualifying child and the definition of a qualifying relative, refer to Publication 501, Exemptions, Standard Deduction and Filing Information.

To claim a dependency exemption for a qualifying relative, the following dependency tests must be met:

The member of household or relationship test,

The citizen or resident test,

The joint return test,

The gross income test, and

The support test.

However, special rules apply to allow parents to claim the exemption for a kidnapped child in certain circumstances. Refer to Topic 357, Tax Information for Parents of Kidnapped Children, for more information.

The first test is the member of household or relationship test. To meet this test, a person must either live with you for the entire year as a member of your household or be related to you. The Form 1040 Instructions and Form 1040A Instructions list all relatives who meet the relationship test. Your spouse is never considered your dependent. A person is not considered a member of your household if, at any time during the tax year, your relationship with that person violates local law. If a person was born or died during the year and was a member of your household during the entire part of the year he or she was alive, the person meets the member of household test.

The second test is the citizen or resident test. To meet this test, a person must be a citizen or national of the United States, a resident of the United States, or a resident of Canada or Mexico. To find out who is a resident of the United States, refer to Topic 851, or refer to Publication 519.

The third test is the joint return test. Generally, you are not allowed to claim a person as a dependent if he or she files a joint return. However, you may claim a person who filed a joint return merely to claim a refund of tax. This exception applies if neither the person nor the person's spouse is required to file a return and no tax liability would have existed for either the person or the person's spouse if each had filed a separate return.

The fourth test is the gross income test. Generally, you may not claim a person as a dependent if the person's gross income equaled or exceeded the exemption amount for the tax year. Refer to "Exemptions" in Publication 501. Gross income is all income in the form of money, goods, property, or services that is not exempt from tax.

The fifth test is the support test. To claim a dependency exemption for a person as your qualifying relative, you generally must provide more than half of that person's total support during the calendar year in which your tax year begins. Special rules apply to multiple support agreements and to children of divorced or separated parents, or to children of parents who have lived apart at all time during the last six months of the year. Refer to Publication 501, Exemptions, Standard Deduction, and Filing Information for more information.

You must include a valid social security number, individual taxpayer identification number (ITIN), or adoption taxpayer identification number (ATIN) for each dependent claimed on your tax return or the exemption will be disallowed. For more information on the ITIN, refer to Topic 857 or refer to Publication 1915 (PDF). For more information on the ATIN, refer to Publication 968, Tax Benefits for Adoption. Also, if you are a dependent of another person, you cannot claim any dependents on your return.

http://www.irs.gov/taxtopics/tc354.html

Edited January 26, 2009 by payxibka

[mindmaster 0]

even though i was married last year and have informed my CPA but she still claimed me as single on my tax return. I guess I must have lost lot of money that should have been refunded to me. Is there any way to rectify last year error? And more important how NVC/ interviewing office will interpret my tax return.

Payxibka I am learning a lot from your post on VJ. Thank you for all your post.

[Boorai 0]

For a dependent:

Time spent for schooling, medical purpose, military, and a few others are all considered residential. Publicaton 519 is clear about that. If one has a child in a school in a foriegn country then this time is still considered residential in the US.

[Patrycja 0]

I am Gracey's husband:

I just got off the phone with the ITS and yes, we CAN file married/joint AND claim our daughter as a dependent.

A non-resident alien(defining resident as actual presence inside the Us or not) can file for a joint return if married to a USC, even though they have ever step foot inside the US. All world-wdie income will be taxed.

What is needed:

1) the current year's 1040

2)W7 - application for ITIN

3)notarized copy of passport

4)a statement signed by both spouses proclaiming desire to be treated as a US resident(for tax purposes)

Read Publication 519. Can be found with an internet search.

Why woudl anyone want to do this???

Use us for example:

1)Filing Single(even though I am not)..my return is about $1700

2)Filing Head of Household...my return is about $3800

3)Filing Married Joint with one dependent....about $6200

HUGE difference!!

So, for those who never considered this, please read and pass along. My CPA was not aware of these last year and we lost out on a couple thousand dollars(thoug I think i can file an amendment to that, but not for certain).

For an absolute answer have your States side spouse call the IRS directly and ask specific question,,,,they are helpful and will give a definetive answer.

You cannot file/apply for an ITIN for your spouse since she is eligible for a SSN when she arrives in the US. An ITIN is only for individuals who come to the US for work or other and are not eligible for SSN, but still have a US income tax filing requirement. And only Mexico & Japan have special tax treaty agreements that the spouse in the US can file for an ITIN on behalf of the dependents in the home country, if they are not in the US.

I don't know your financial situation, but I work in international tax, and my advice would be that since your wife is arriving in April, file for an automatic extension until October 15, once she is here she will get her SSN in about 1 week, in the meantime, prepare your return as if she is already here and just plug her SSN into your income tax return. Then you can file MFJ, claim all the allowances and exemptions, and not have to deal with the hassle of the ITIN being rejected.

Just my opinion.

- Patrycja

[payxibka 10,044]

For a dependent:

Time spent for schooling, medical purpose, military, and a few others are all considered residential. Publicaton 519 is clear about that. If one has a child in a school in a foriegn country then this time is still considered residential in the US.

That is to maintain tax residency for someone who was already a resident but not for establishing residency for someone who has never seen the inside of the USA in the first place...

Please provide cite where you draw your conclusion.

the decision tree for resident alien status is pretty simple... (in Pub 519)

Were you a lawful permanent resident of the United States (had a “green card”) at any time during 2008? NO

Were you physically present in the United States on at least 31 days during 2008? NO

Then You are a nonresident alien for U.S. tax purposes.

Your wife is granted resident alien tax status by special election, as a spouse of a USC. Dependents do not get this special election nor do they get to ride the parental "coattail." No such thing as derivitive status, I am afraid.

Edited January 26, 2009 by payxibka

[Boorai 0]

my references are Pub 519, Pub 501, and a phone call directly the the IRS non-resident department.

Now i could be read 501 a bit too finely and will review it again. But, there is no doubt that my wife can obtain an ITIN..simply by marriage to a USC; thus allowing a joint filing.

For a dependent:

Time spent for schooling, medical purpose, military, and a few others are all considered residential. Publicaton 519 is clear about that. If one has a child in a school in a foriegn country then this time is still considered residential in the US.

That is to maintain tax residency for someone who was already a resident but not for establishing residency for someone who has never seen the inside of the USA in the first place...

Please provide cite where you draw your conclusion.

the decision tree for resident alien status is pretty simple... (in Pub 519)

Were you a lawful permanent resident of the United States (had a “green card”) at any time during 2008? NO

Were you physically present in the United States on at least 31 days during 2008? NO

Then You are a nonresident alien for U.S. tax purposes.

Your wife is granted resident alien tax status by special election, as a spouse of a USC. Dependents do not get this special election nor do they get to ride the parental "coattail." No such thing as derivitive status, I am afraid.

My wife is not eligible to recieve a SSN until she arrives in the US...I called the SSA to verify this. So, since she is not eligible to recieve a SSN at this time, she can get an ITIN

my references are Pub 519, Pub 501, and a phone call directly the the IRS non-resident department.

Now i could be read 501 a bit too finely and will review it again. But, there is no doubt that my wife can obtain an ITIN..simply by marriage to a USC; thus allowing a joint filing.

For a dependent:

Time spent for schooling, medical purpose, military, and a few others are all considered residential. Publicaton 519 is clear about that. If one has a child in a school in a foriegn country then this time is still considered residential in the US.

That is to maintain tax residency for someone who was already a resident but not for establishing residency for someone who has never seen the inside of the USA in the first place...

Please provide cite where you draw your conclusion.

the decision tree for resident alien status is pretty simple... (in Pub 519)

Were you a lawful permanent resident of the United States (had a “green card”) at any time during 2008? NO

Were you physically present in the United States on at least 31 days during 2008? NO

Then You are a nonresident alien for U.S. tax purposes.

Your wife is granted resident alien tax status by special election, as a spouse of a USC. Dependents do not get this special election nor do they get to ride the parental "coattail." No such thing as derivitive status, I am afraid.

[ruby_jade 0]

in my husband 2007 ITR he filed married jointly and claim our son as a beneficiary, as i remember it last year we submitted a w7 and notarized copies of my passport and my son's BC.

[Boorai 0]

Ruby:

And I presume your tax return was with full exemptions and dependent credits?

in my husband 2007 ITR he filed married jointly and claim our son as a beneficiary, as i remember it last year we submitted a w7 and notarized copies of my passport and my son's BC.

[payxibka 10,044]

my references are Pub 519, Pub 501, and a phone call directly the the IRS non-resident department.

Now i could be read 501 a bit too finely and will review it again. But, there is no doubt that my wife can obtain an ITIN..simply by marriage to a USC; thus allowing a joint filing.

There is no argument on this issue as it pertains to the spouse...... the disparity is on the non-resident alien children... They are NOT qualified dependents for tax purposes.

in my husband 2007 ITR he filed married jointly and claim our son as a beneficiary, as i remember it last year we submitted a w7 and notarized copies of my passport and my son's BC.

You can claim anything you want... the question will be is it allowed and will it survive an IRS review? As it relates to the non-resident alien children, not it is not and no it will not. But to quote Frank Abignale "Catch me if you can."

Edited January 27, 2009 by payxibka

[Boorai 0]

Well, at the least people can get the benefit of filing joint.