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Marital Quandary


Christian

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A longstanding client came in as usual at the last minute bringing his twenty something daughter's first tax return info. The daughter has her own home, a three year old baby, and a husband who is an Hispanic illegal with no tax ID of any kind who of course files no taxes likely working for cash. Instead of taking his family name she has retained her maiden including the family last name just as if she never married. In a word I have no clue as how to proceed. They live together so I can't file her as head of household. If filed as married filing separate how do I show the husband with no social security or TIN? In this neck of the woods this is an unheard of occurrence. In a word I simply have no idea of how to proceed. I may ask to see the marriage certificate it may provide an out. Any suggestions ?

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MFS with a dependent and paper file. MFJ with ITIN application mailed to Austin (? where ever the instructions specify). Is there any expediting of a SSN for a marriage? Have her speak to an immigration lawyer or an Acceptance Agent.

She's twenty something and owns a home but never filed before? POA and eServices to see what's up re prior years.

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Those are simply the facts. No W-2s, no 1099-NECs no nothing as well as he does not file taxes. His father in law basically filled me in on the relevant facts. If she considers reality racial well that is her prerogative although I intend on talking with her. I have a diverse group of clients and no issues relating to race have occurred in thirty nine years. I have pretty well decided to file her as mfs and let the Service deal with his lack of an ID. Her home was apparently an inheritance from a family member.

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I have an identical situation, only that the wife has already filed with another preparer as HOH claiming the EIC and CTC. The husband is illegal does not have a tax ID, came to me subsequently wants me file for a tax ID and file a tax return as a self employed. His papers are in process.

I am also a Certified Acceptance Agent. My dilemma is that if I filed him as MFS, if the IRS reviews his wife's tax return along with his, they might have to pay back the EIC because they are living together and he does not have a SSN. 

If I filed him as a single person along with his W-7 form to obtain his ITIN, then that might be a problem with immigration because the wife-legally married- is sponsoring him. This might have a negative effect on on the husband's application to be a green card holder.

I have referred to the husband's attorney and advise not file an ITIN and a tax return at this time, because this will create chaos in the home if the wife has to pay back the EIC. Let the immigration attorneys sort this mess out.

In Christian's case, you can paper file a joint return, and applying for an ITIN for the husband, only that the EIC would be denied.

Anything is possible, only a price is involved. 

 

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It doesn't matter whether he received any Forms W-2, 1099-NEC, etc. All that matters is does he have taxable income? If the couple is working with an immigration lawyer, ask to be looped in. If they are not, recommend a good immigration lawyer to them. (Ask around your local networks.)

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I don't see the quandry!

The only thing to do is to paper file MFJ along with an ITIN application to Austin if that is where they still go.

Any other approach would be ignoring the rules and regulations.

In addition not doing this blocks eventually getting a green card and ultimately citizenship.

I have some longtime clients who are in this exact situation, which has worked out just fine.

He has renewed his ITIN multiple times with no issues.

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First I thank all of you for your responses. I have yet to speak with the wife. An immigration attorney is in Richmond at best. I expect to recommend that they apply for an ITIN and file a joint return but I don't know what the result will be. In filing this way do they get the EIC and child credit ? My feeling is he does not want to be shown on any tax document but we will see how this plays out.

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19 minutes ago, Christian said:

do they get the EIC and child credit

EIC - no, can't claim EIC with an ITIN

CTC and ACTC - yes, a taxpayer with an ITIN may claim this providing all requirements are met. Child must have SSN, child can't have ITIN.

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Well he surely has unreported income supporting a wife who has not worked and a baby. I have located an immigration attorney with a listing in this county. I will see her dad on Monday next and give him the number and see how it goes. If no ITIN is to be obtained it's mfs showing his name as required and NRA in the Social Security field. I'll see if she will provide a photocopy of her marriage license on the chance it was performed by some shade tree preacher who is not licensed in Virginia. Every once in awhile one of these will pop up and if unlicensed the State will not recognize the marriage at least this was the practice formerly unless changed.

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16 hours ago, Christian said:

 I'll see if she will provide a photocopy of her marriage license on the chance it was performed by some shade tree preacher who is not licensed in Virginia. Every once in awhile one of these will pop up and if unlicensed the State will not recognize the marriage at least this was the practice formerly unless changed.

I am just curious about how you can tell whether or not the marriage is legal.  Virginia recognizes all ceremonies performed by a licensed minister, I believe, and any one can become licensed to perform weddings as long as they can get any clerk of court to recognize them for the purpose.  Is there a central listing?

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Heaven knows I am no authority. My nephew is an Anglican Catholic priest and somewhere along the line discussed ministerial licensing with me. At a recent marriage a Baptist minister mentioned something along the line of by the power invested in me by the State of Virginia (which I found unusual). It's likely a moot point as I doubt she will produce it. In any event I am advising the couple speak with an immigration attorney and if they choose not to then I will prepare a mfs return if they are happy with that. Frankly, I am getting away from returns with potential problems and only entertain this one because of my long relationship with her parents.

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Massachusetts has some kind of provision for one-day licensing so anyone can perform a legal marriage ceremony.  Wouldn't be surprised if other states have similar provisions.  (Allows an out-of-state minister, or a friend or family member, to perform the ceremony for the couple.)

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