Wierd question: 1-864 and 2005 tax vs filling status

[buzz17 0]

I got married to my sweetheart last year and filled for the 1-130, and papers for K-3,which were all approved and my wife is jetting in on K-3 next sunday for the first time since our marriage. I am planning to file for the 2005 tax return next week. My question is whats my filling status,married filling separately or single? The tax helper i talked to, said for tax purposes only that my filling status is single since my spouse wasnt in the USA. Talking to one paralegal,she told me that for immigration purposes I am legally married, so i have to mention that on my 2005 tax filling in order to file the AOS form #1-864. We have opted to go ahead with the 1-130 consular process instead. So I am in dilemma which path should I take? File as single or married but spouse hasn't even got any SSN # in the USA. So what do I do? Has any one had similar situation? Any experiences?

Thanks

R

[Alcurin 0]

You need to apply to the IRS for an ITIN (Individual Taxpayer Identification Number).

I got married in 2003 and my wife's IR-1 interview is next month. I have filed "Married - Filing Jointly" since 2003 and my wife has never been to the USA.

You will need to make a copy of her passport bio page and then take the passport and the copy to a notary public. Notarization of the copy as "... a true and correct copy" will permit you to apply for the ITIN.

The IRS form you need is a W-7.

Other forms of ID are acceptable, but I used the copy of the passport.

If you wife has income, however, you will have to declare it and pay tax on it.

[buzz17 0]

Thanks so much ALCURIN for your help on this issue. This is very helpful. I am looking at the IRS Pub 519 to familiarizes myself with all options. I have w-7 form ready to go. I have all the documentations needed.

Thanks so much again

[jennieh 0]

This makes me wounder about my taxes and if they were done right. I went to H & R Block and I honestly couldnt believe how know one knew anything at all in there. I know I filed something as married and they couldnt get it to work so they made up a SS# and whited it out and told me I have to mail it in I have no other choice.

[flipicaneze 19]

As far as what I have heard from another tax person in order to file taxes with her as a dependent, she will have to have a SSN or ITIN in order for you to do so.

PROBLEMS:

-In order to get a SSN your spouse has to be in the USA legally and not as a tourist.

-In order to get a ITIN you must prove that you and your spouse have lived together for at least six months. (Even outside of the USA)

In another words a wierd form of catch 22.

This makes me wounder about my taxes and if they were done right. I went to H & R Block and I honestly couldnt believe how know one knew anything at all in there. I know I filed something as married and they couldnt get it to work so they made up a SS# and whited it out and told me I have to mail it in I have no other choice.

I can't believe they used white out!!!!

[shaffja 0]

It is not as easy as just applying for an ITIN (IRS form W-7)...

They don't send you the ITIN and then you complete your taxes using that number. Instead you have a copy of her passport notarized with supporting documentation of your marriage. Then you send your actual tax return to a special office of the IRS for review.

I considered this... but then changed my mind. I don't want the IRS scrutinizing my taxes and then potentially dealing with an audit. My wife will be here probably in May or June. So, I am waiting for her arrival and then immediately filing for her a Social Security number. Then I can e-file (using her SS#) like I do every year. In the meantime I am going to request an extension to file. As long as you don't owe the IRS any money this will not cause any problems.

My situation is slightly different than yours in that we went the CR-1 route and when she arrives she will be a permanent resident and immediately eligible for a Social Security number. I believe you will have to file for a change in status since she came in on a K-3 Visa... and I'm not sure how long that will take?

[buzz17 0]

I appreciate all responses.

I now have an idea about the complexity of applying for the ITIN and SSN #s. My wife is coming on k-3 and wait for the NVC process of the recently approved 1-130,afterwhich she will fly back for the consular interview. I am now wondering whether she will get the SSN# on time for me to file the 2005 tax and avoid the ITIN. I wouldn't really like to give IRS a blanket go ahead to strictly scrutinize my return. I would rather wait,if need be see how I can handle the issue,not ruling out an extension to file option. Good enough I still have about 50days to April 15th deadline.

I am learning new things which the tax guy didn't alert me of.

[dmartmar 1]

This makes me wounder about my taxes and if they were done right. I went to H & R Block and I honestly couldnt believe how no one knew anything at all in there.

They are tax experts, not immigration experts.

Talk to an Immigration atty., he will tell you what and how to file under.

Then go back to H & R Block.

Edited February 12, 2006 by dmartmar

[Alcurin 0]

This comes directly from the IRS at http://www.irs.gov/publications/p519/ch01.html#d0e1644

"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 a U.S. resident. This includes situations in which one spouse is a nonresident alien at the beginning of the tax year, but a resident alien at the end of the year, and the other spouse is a nonresident alien at the end of the year.

If you make this choice, you and your spouse are treated for income tax purposes as residents for your entire tax year. Generally, neither you nor your spouse can claim tax treaty benefits as a resident of a foreign country for a tax year for which the choice is in effect and 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."

The W-7 is also clear about how to obtain the ITIN for a foreign spouse and/or dependent. You cannot file an income tax return without the SSAN or ITIN information.

I provide all the support for my wife (academic scholarship student) and stepson and I am entitled to claim them as dependents under U.S. tax laws. I have done so since 2003 and I do not worry at all about an audit.

[jennieh 0]

This makes me wounder about my taxes and if they were done right. I went to H & R Block and I honestly couldnt believe how no one knew anything at all in there.

They are tax experts, not immigration experts.

Talk to an Immigration atty., he will tell you what and how to file under.

Then go back to H & R Block.

They might not be immigration experts but still they should know about how to file and what you need. Its their job to help you and others probably have came in and did this type before.

[dawnnhatem 0]

Any chance she is entering through jfk? if she can get employment authorization on the way in, she can go apply for her ssn before you file, and on the tax forms write in "ssn applied for" on her ssn line and not bother with the w-7 for a itin.

Theres nothing stopping you from filing jointly either way though. You will need the copy of her passport for the w-7 and you would need a short written statment indicating your decision to consider her a resident alien for tax-filing purposes. Somewhere here its posted that you need 6 months together or something...never saw any requirement like that and I had no troubles at all getting my husbands itin and filing jointly last year. dont forget to send it to the philadelphia irs location, no matter what state you live in if you do include a w-7.

[buzz17 0]

Thanks alot. Shes coming through LAX,I donot know whether they give Employment authorization like at JFK. We learned of that prospect at JFK later after we had already booked the non-refundable ticket. Once she arrives,i will straight away begin the process of filling for the 2005 tax. I checked with the NVC automated,to find out if my case has been asigned a number,but nothing yet. It seems,CSC delays to forward approved cases to the NVC. I will use that wait time to file the tax and use it for the Affidavit of support.The tax guy had no idea about filling a joint return for a spouse who wasn't in the US the entire tax year. He only knew about those Aliens (spouses) already in the US. But thanks for coming up with vivid examples,I just feel am off the hook,because i would have messed up everything if it wasn't you fellows.

[meauxna 15]

K-3s do not get automagic Employment Authorization (at JFK or anywhere); they must apply for an EAD to be entitled to a Social Security number.

Keep your topic up top; more people will reply when the workweek starts

Also, gimygirl had a great tax thread on the old forum, if you feel up to looking for her pinned thread on the topic.

[Yodrak 7]

dmartmar,

And this is a tax issue - not an immigration issue.

Agreed, however, that H & R Block may not be the best place to get advice with regard to non-resident aliens treated as resident aliens and foreigne-earned income. But neither is an immigration attorney.

Yodrak

This makes me wounder about my taxes and if they were done right. I went to H & R Block and I honestly couldnt believe how no one knew anything at all in there.

They are tax experts, not immigration experts.

Talk to an Immigration atty., he will tell you what and how to file under.

Then go back to H & R Block.

[gotzfayth 0]

As far as what I have heard from another tax person in order to file taxes with her as a dependent, she will have to have a SSN or ITIN in order for you to do so.

PROBLEMS:

-In order to get a SSN your spouse has to be in the USA legally and not as a tourist.

-In order to get a ITIN you must prove that you and your spouse have lived together for at least six months. (Even outside of the USA)

In another words a wierd form of catch 22.

This concerns me as my husband and I were only together for about 5 weeks b4 he had to return to the UK. If this is true then how do I file taxes? Help!!! I thot I had to have the ITIN.. so so confused here.

Gotz