Karen Lee Posted November 20, 2013 Report Share Posted November 20, 2013 Non resident alien is a student (Masters Program)in the Republic of Georgia and he is a citizen of Nigeria. My client found this guy on the internet and she went to the Republic of Georgia and married him, Upon her return to the US she found out she was pregnant. She has had the child and now is trying to figure out how to do her taxes. He does not have an ITIN and he doesn't have any income and I don't know what to tell her. I did suggest to go to someone who has experience in this type of return however I thought I would ask your opinion and maybe get some reference sources. Thanks Karen Quote Link to comment Share on other sites More sharing options...
Guest Taxed Posted November 20, 2013 Report Share Posted November 20, 2013 Is your client a natural born US citizen? Did she sponsor for a Green Card for her husband? A foreign citizen married to a US citizen does not have to wait for quotas to become available. They fall under Immediate Relative category. What is the status of that because Immigration may challenge it as fraud because of the nature of how they met. If he was preliminary approved for permanent residency I believe he can get a SS#. Quote Link to comment Share on other sites More sharing options...
kcjenkins Posted November 20, 2013 Report Share Posted November 20, 2013 I have some questions about the lack of income for him. How is he living, and paying for his school costs, if he has no income? She might want to file MFS and claim the child, but I really would want to know more before proceeding. I think the issue of the validity of the marriage should be cleared up first, as well, if he's not living with her. Quote Link to comment Share on other sites More sharing options...
Guest Taxed Posted November 20, 2013 Report Share Posted November 20, 2013 I am waiting for MsTabbyKats to chime in. I think she does a lot of those 1040NR returns. I have a feeling the wife is supporting him 100%. Quote Link to comment Share on other sites More sharing options...
PatHack Posted November 21, 2013 Report Share Posted November 21, 2013 Karen If the Nigerian national is not living in the USA w/ your client, the US taxpayer, then the US taxpayer may file as Head of Household. As such, the US taxpayer doesn't have to report her Nigerian husband or his income at all. See IRC Section 2(b)2(. This section changes the US taxpayer's normal status (a little known section of the code). The Code states “a taxpayer shall be considered as not married at the close of his taxable year if at any time during the taxable year [her] spouse is a nonresident alien”. 1 Quote Link to comment Share on other sites More sharing options...
Pacun Posted November 21, 2013 Report Share Posted November 21, 2013 The immigration status for the husband and how they met are irrelevant. She is married as long as the US recognizes that marriage and she can file jointly and request an ITIN for him. They have to sign a statement that he wants to be treated as a US resident for tax purposes and they both have to include their world wide income. Depending on when they got married, she can file as Head of Household (if the child was born on or before Dec 31st of the tax year or has another child from a previous relation and qualifies for HH) if she "didn't live with her spouse on the last 6 months of the tax year". The hardest way to file this return is MFS because she needs to list his non-existing ITIN and getting an ITIN without filing a return is not easy. Quote Link to comment Share on other sites More sharing options...
MsTabbyKats Posted November 21, 2013 Report Share Posted November 21, 2013 If he is not American and a student in the Republic of Georgia with no American incomed....I'd just do a HH return (I assume the woman is American and the child was born here). If he gets a SS or an ITIN# sometime down the road (within 3 years)....she can amend to "MFJ". Quote Link to comment Share on other sites More sharing options...
PatHack Posted November 21, 2013 Report Share Posted November 21, 2013 HoH is required by IRC Section 2(b)2( if the spouse is an NRA. If the NRA gets an ITIN or SSN, but is still an NRA, the taxpayer is still required to file as HoH. Quote Link to comment Share on other sites More sharing options...
Pacun Posted November 21, 2013 Report Share Posted November 21, 2013 HoH is required by IRC Section 2(b)2( B ) if the spouse is an NRA. If the NRA gets an ITIN or SSN, but is still an NRA, the taxpayer is still required to file as HoH. It is hard to argue with you since you have a section of the code, but someone might bring up the code where you can file MFJ if your spouse is a non-resident and you attach a signed paper to the 1040 where you state that your spouse wishes to be treated as a resident and they include their world wide income. Based on what you are saying, you have only two choices: Single or HH for the US citizen in this post, correct? Quote Link to comment Share on other sites More sharing options...
PatHack Posted November 21, 2013 Report Share Posted November 21, 2013 The TP's spouse may elect to be treated as a RA to file MFJ. I have not seen the situation, as the alien would then have all of the US intl tax filing obligations (FBAR, 5471, 8621, 8938, 8865, etc....) plus report worldwide income and pay tax on it. The only advantage i can see is if the spouse has very limited or no non-US assets, and has little or no income. This would allow the TP to possibly have a lower overall tax bracket. Therefore the TP does have the option to file HH or MFJ. The TP does not have the option to file as single. IRC 2( only applies if the TP has a qualifying child (irc 2((1)(A)(i). If the TP couldn't claim the child, then the TP will have to file as MFS. Quote Link to comment Share on other sites More sharing options...
Pacun Posted November 21, 2013 Report Share Posted November 21, 2013 HoH is required by IRC Section 2(b)2( if the spouse is an NRA. If the NRA gets an ITIN or SSN, but is still an NRA, the taxpayer is still required to file as HoH. "is required" means MUST and that's the reason of my argument. I am happy with your explanation. She has the choice of MFJ, HH (if qualifies) or MFS as I stated on my original post. Quote Link to comment Share on other sites More sharing options...
MsTabbyKats Posted November 21, 2013 Report Share Posted November 21, 2013 But, for anything other than HH he would need an ITIN#.....and he would need to submit his original passport to get one (unless they changed the rules again). Getting an ITIN is a real PITA...even if you are entitled. Last year all my clients had to make "personal visits" because I would not allow them to mail in original passports. One even had to bring his daughter "as evidence"! So....no matter what "she can file as"....HOH is the smoothest path. And then she can amend down the road..... Quote Link to comment Share on other sites More sharing options...
Guest Taxed Posted November 21, 2013 Report Share Posted November 21, 2013 http://www.irs.gov/Individuals/2013-ITIN-Updated-Procedures-Frequently-Asked-Questions IRS has the new rules regarding ITIN posted at their site. I agree with you, do NOT send your original passport (foreign issued) to IRS. If they lose it and you get caught in a INS dragnet you will relive Born in East LA?? Remember that movie. Quote Link to comment Share on other sites More sharing options...
PatHack Posted November 21, 2013 Report Share Posted November 21, 2013 No ITIN/SSN is needed for MFS to an NRA. You can input "NRA" in the spouse's SSN box, but you won't be able to efile (or atleast I couldn't get ATX to efile w/ the NRA input). Quote Link to comment Share on other sites More sharing options...
MsTabbyKats Posted November 21, 2013 Report Share Posted November 21, 2013 No ITIN/SSN is needed for MFS to an NRA. You can input "NRA" in the spouse's SSN box, but you won't be able to efile (or atleast I couldn't get ATX to efile w/ the NRA input). As I said...."the smoothest path". The taxpayer should "do better" as an HOH anyway (tax, childcare credit, EITC etc...).....so I don't see a point to MFS. Quote Link to comment Share on other sites More sharing options...
Karen Lee Posted November 21, 2013 Author Report Share Posted November 21, 2013 Thank you all. I have more questions to ask TP and a place to start my research. It is looking like a HoH situation. Quote Link to comment Share on other sites More sharing options...
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