what do you think-illegal alien

[michaelmars]

client got married 2/14 to an illegal alien He hasn't filed 2013 but wants to because he is applying to be a citizen and wants all his ducks in a row. he lived here for all of 2013. and earned around 10-15k, I haven't seen the doc's yet. Is this a 1040 or 1040NR or something else? He had 2 jobs one in cash and one in checks. He will report it all.

[MsTabbyKats]

It's NOT an NR...

It's a regular 1040, (unless he was here on a J1 or F1...which I doubt).

Wait...who is the client? Someone legal who married an illegal? And who is applying for citizenship?

My answer was based on someone who was here legally... and wants to file for 2013.

If it's the illegal person who wants to file...I don't think he can...without a social security number

[Max W]

For a person not eligible for a SSN, an ITIN must be obtained.

The first step is form W-7. (there is also a Spanish version).

This needs to be filled out and necessary documentation supplied (usually a passport, or in the case of illegals, a Certified Birth Certificate).

To avoid using the original docs, they can be approved by an Acceptance Agent (there is a huge list on the IRS website.)

After that it can be sent in with the tax return - Soc. Security box marked "Applied for"

to the ITIN Operation Austin TX.

http://www.irs.gov/pub/irs-pdf/iw7.pdf

[michaelmars]

he has an itin. To answer Ms. Tabby. My client married an illegal alien in 2014. Turns out he didn't file any return for 2013 when he was single. Now he wants to file while he is applying for citizenship. He has no visa to be here that I know of. Just to make things more interesting, he has a child from a prior marriage that is a US citizen and owes back child support that seems to be the major road block to his citizenship.

[MsTabbyKats]

he has an itin. To answer Ms. Tabby. My client married an illegal alien in 2014. Turns out he didn't file any return for 2013 when he was single. Now he wants to file while he is applying for citizenship. He has no visa to be here that I know of. Just to make things more interesting, he has a child from a prior marriage that is a US citizen and owes back child support that seems to be the major road block to his citizenship.

For 2013 I'd do a regular 1040. I guess he can't take the child as a dependent.

For 2014 he can't apply for an ITIN for his illegal wife because he doesn't have a social security number himself. However...you don't need to be a citizen to get the SS number. Maybe he somehow could qualify for one.

Maybe he should divorce the illegal....and marry his baby momma. It would make his tax return & quest for citizenship so much easier.

[TaxMan60601]

You definitely need to know residency and visa status as of 31/12/2013.

At least you know filing status :-) .... I doubt he'll be able to claim dependent.

There is no such "illegal alien" when talking about collecting taxes by the Federal agencies ..... Treated as a citizen of the country on a general basis and that's it

[MsTabbyKats]

You definitely need to know residency and visa status as of 31/12/2013.

At least you know filing status :-) .... I doubt he'll be able to claim dependent.

There is no such "illegal alien" when talking about collecting taxes by the Federal agencies ..... Treated as a citizen of the country on a general basis and that's it

I would assume baby momma claims the child as a dependent.

Just do it the simple way....a 1040....no questions asked.

If he comes back to you for 2014....do a MFS for him..with NRA written in the SS box for her. Since she doesn't have a valid visa...there is no way she qualifies for an ITIN with the current situation.

Or...tell him to pay his child support....and become a citizen.

[michaelmars]

MAYBE I wasn't clear, his current wife, my client, is a naturally born US citizen, that's why them getting married should make him one too but their lawyer is saying the back child support and non filing of tax returns is creating roadblocks. He has been in the country for years and filed returns, except he "forgot" to file 2013. The fact that she works for me IN AN ACCOUNTING OFFICE didn't trigger his memory to file his return.

In the past he did it himself so I just wanted some clarification as to the proper forms to file. He will be filing single for 2013 and mfs for 2014 if I am doing the returns. He won't be claiming the child or any other credits etc.

[Gail in Virginia]

I think that you are on the right track, Michael. 1040NR is for non-resident aliens, and while he was not here legally he was resident. I think that they could file MFJ for 2014, but if it doesn't make very much difference I would probably protect her by doing MFS.

[kcjenkins]

I think that you are on the right track, Michael. 1040NR is for non-resident aliens, and while he was not here legally he was resident. I think that they could file MFJ for 2014, but if it doesn't make very much difference I would probably protect her by doing MFS.

Or even if it does cost, protect her with MFS. Someone who's been breaking the law for years, plus does not take care of his responsibility to his child, is hardly someone who you want to reply on his word.

[MsTabbyKats]

Maybe I'm slow today.

The wife is American...so she filed a return for 2013.

He is not American..is here illegally but has an ITIN number.

If he was here illegally...he did not qualify for an ITIN number. What I am thinking is that he was married previously to another American and they filed jointly...and he got an ITIN based on that.

In any case...I'd do a 1040 for 2013...when he was single. Simple as that..........

However...I think a lot of this story is missing. You don't go from illegal status to citizen status immediately because you married a citizen. I think there is a 5 year (or something like that) process.

[MsTabbyKats]

I think that you are on the right track, Michael. 1040NR is for non-resident aliens, and while he was not here legally he was resident. I think that they could file MFJ for 2014, but if it doesn't make very much difference I would probably protect her by doing MFS.

They need to file joint if he is trying to become a citizen.

[Pacun]

It is amazing how little we know on some areas and yet we use strong words such as illegal aliens when we refer to our clients, but that's another subject. An ITIN is for a person who crossed the border, got a towel, got himself dried and started working without the proper documentation and wants to file his/her taxes.

Going back to the question at hand, this is what you need to do. First, limit yourself to prepare their taxes geting them the biggest refund legally possible or reducing their tax liablity as much as it is legally possible. If they want immigration advice, they will consult their immingration attorney.

We know that not paying child support will not prevent you from claiming the child's exemption in 2013 as long as the child lived with him in the same household more than 183 nights. So you need to file as single for 2013 and if he qualifies, he can claim the child and if he further qualifies he can file as HoH.

In 2014, they are both your clients and you can talk to them about the fact that if they are getting a refund, it will be redirected to cover his child support if he is not current. The wife and him have only two choices to file: MFS or MFJ. You will file 1040 all along.

If you they decide to file jointly, you list her first on the return and list the husband second with his ITIN. Since he has been here in the US, you do't have to do anything special. 99% of these people file jointly because that helps to prove that their marriage is a bone fide marriage but that something that is beyond our scope.

If they decide to file MFS, then you will prepare 2 1040 and that's it.

[MsTabbyKats]

It is amazing how little we know on some areas and yet we use strong words such as illegal aliens when we refer to our clients, but that's another subject. An ITIN is for a person who crossed the border, got a towel, got himself dried and started working without the proper documentation and wants to file his/her taxes.

Going back to the question at hand, this is what you need to do. First, limit yourself to prepare their taxes geting them the biggest refund legally possible or reducing their tax liablity as much as it is legally possible. If they want immigration advice, they will consult their immingration attorney.

We know that not paying child support will not prevent you from claiming the child's exemption in 2013 as long as the child lived with him in the same household more than 183 nights. So you need to file as single for 2013 and if he qualifies, he can claim the child and if he further qualifies he can file as HoH.

In 2014, they are both your clients and you can talk to them about the fact that if they are getting a refund, it will be redirected to cover his child support if he is not current. The wife and him have only two choices to file: MFS or MFJ. You will file 1040 all along.

If you they decide to file jointly, you list her first on the return and list the husband second with his ITIN. Since he has been here in the US, you do't have to do anything special. 99% of these people file jointly because that helps to prove that their marriage is a bone fide marriage but that something that is beyond our scope.

If they decide to file MFS, then you will prepare 2 1040 and that's it.

Sorry....but IRS is very strict about giving out ITIN numbers. There is no way a truly illegal could get one. You need a valid visa. There's more to this saga than we know.

[ILLMAS]

Filing with an ITIN --
• The IRS issues ITINs for federal tax purposes, and ITINs should be used for tax reporting only.
• ITINs do not authorize a person to work in the U.S. or provide eligibility for Social Security benefits.
• Tax returns filed with an Individual Taxpayer Identification Number reporting wages paid are required to show the Social Security Number under which the wages were earned. This creates an identification number (ITIN/SSN) mismatch. In the past, returns with this mismatch could only be filed on paper. Due to programming changes the IRS' e-file system can now accept these returns. The taxpayer's correct ITIN should be used as the identifying number at the top of Form 1040. When inputting W-2 information, the SSN should be entered exactly as shown on the Form W-2 issued by the employer. It is now possible to e-file a return with an ITIN/SSN mismatch.
• If a primary taxpayer, spouse, or both have ITINs, they are ineligible to receive the Earned Income Tax Credit (EITC), even if their dependents have valid SSNs. If the taxpayer and spouse (if filing jointly) have valid SSNs, only dependents with valid SSNs – not ITINs – qualify to receive EITC.

Seeking an ITIN --
• ITIN applicants must show a federal tax purpose for seeking ITINs. Most will demonstrate a tax purpose by attaching an original federal tax return to Form W-7, Application for Individual Taxpayer Identification Number, and mailing, with their proof of identity and foreign status documents, to the IRS address listed in the Form W-7 instructions.
• In cases where a current year tax return has already been filed that excluded a spouse or dependent who needs an ITIN, the taxpayer should complete Form 1040X, Amended U.S. Individual Income Tax Return, showing the ITIN applicant’s information, and attach it to Form W-7.

[michaelmars]

Or even if it does cost, protect her with MFS. Someone who's been breaking the law for years, plus does not take care of his responsibility to his child, is hardly someone who you want to reply on his word.

i would never file her joint until he is legal and current on child support.

[michaelmars]

just gets better and better and all of your comments re:itin are right. seems that he was here legally and had papers to work but lost them and never renewed them. Now that he is trying to renew them the issues of his arrests for dui and non payment of child support are becoming roadblocks per their attorney.

I just prepared his single 1040, about 25k of income. and plan on paper filing it since I don't know if the number on the W-2's are itin's or what.

[Pacun]

i would never file her joint until he is legal and current on child support.

Who are you to decide for the client?

If the client wants to marry someone who owes money and wants to file jointly, you just do the job you were hired to do.

What is a bigger mistake, to marry someone who (maybe) is looking for a green card or to file jointly?

[Pacun]

just gets better and better and all of your comments re:itin are right. seems that he was here legally and had papers to work but lost them and never renewed them. Now that he is trying to renew them the issues of his arrests for dui and non payment of child support are becoming roadblocks per their attorney.

I just prepared his single 1040, about 25k of income. and plan on paper filing it since I don't know if the number on the W-2's are itin's or what.

If he had a work authorization and didn't renew it, most likely he is from Honduras or El Salvador and he didn't renew his TPS. If that's the case, he should have a social security card.

[Pacun]

Sorry....but IRS is very strict about giving out ITIN numbers. There is no way a truly illegal could get one. You need a valid visa. There's more to this saga than we know.

I request about 10 ITINs every year and they are all approved. Some of them have deportation orders from a Federal Immigration judge but they are required to file and want to file their taxes and the IRS is required to issue them an ITIN in order for them to file their taxes.

There are others that go outside the US and get married. Then the US citizen comes back to the states and the spouse stays outside the USA waiting for a visa. In that case, if the both agree to file joint returns, they have to send a statement with their 1040 stating that they want the non-resident spouse wants to be treated as a U.S. resident for tax purposes and they include their global income.

If you are authorized to work in the USA, you should be able to get a Social Security card and not bother with an ITIN.

[Jack from Ohio]

Who are you to decide for the client?

There is this thing known as Circular 230. If you have not read, studied and become familiar with the new version, you need to.

[Pacun]

There is this thing known as Circular 230. If you have not read, studied and become familiar with the new version, you need to.

I am an Enrolled Agent and I have read it. Where is the violation that you are referring to? Copy and paste that part and I will see if you are right.

[TaxMan60601]

Absolutely agree with Pacun, and support all his posts on this case.

Indeed, there is some level of guiltiness, but as I said, violating immigration law does not prevent someone from getting his tax affairs done.

"First, limit yourself to prepare their taxes geting them the biggest refund legally possible or reducing their tax liablity as much as it is legally possible."

"If you they decide to file jointly, you list her first on the return and list the husband second with his ITIN. Since he has been here in the US, you do't have to do anything special."

"... to marry someone who (maybe) is looking for a green card ..."

"In that case, if the both agree to file joint returns, they have to send a statement with their 1040 stating that they want the non-resident spouse wants to be treated as a U.S. resident for tax purposes ..."

I start to think, that your client knows well what he "forgot" to do in 2013 and what they need to do now - they just need some help in preparing taxes.

[michaelmars]

If he had a work authorization and didn't renew it, most likely he is from Honduras or El Salvador and he didn't renew his TPS. If that's the case, he should have a social security card.

he is from Italy if that means anything to you re;soc sec number....I am just doing the return as per the attorneys request for a return.

[michaelmars]

Who are you to decide for the client?

If the client wants to marry someone who owes money and wants to file jointly, you just do the job you were hired to do.

What is a bigger mistake, to marry someone who (maybe) is looking for a green card or to file jointly?

please don't be so literal, of course its the clients decision, I should have send I would strenuously object to their request to file jointly. If the immigration lawyer says he wants joint then I will change her withholding to make sure there there is a balance due. [yes with her permission]. I can't decide for the client but I can decide what is best and advise accordingly.

and this is not a green card marriage, they have a 16 month old child and from what I can tell they are in love. [maybe a little less now that their savings to buy a house is going to the attorney]. Remember that the wife, the us citizen works in my office so I see and hear their interactions daily in person and on the phone.