Incorrect filing status

taxesforaliens · Oct 12, 2011, 06:43 AM

Based on the information in your other question you would still be a non-resident alien for 2010 (as you were on a student visa for less than 5 years).
Your wife should have filed married filing separately. In that case she could have taken a personal exemption for her non-resident alien spouse (you) as you didn't have any US source income.

taxesforaliens · Oct 12, 2011, 06:43 AM

She would have to amend her return for 2010.

AtlantaTaxExpert · Oct 12, 2011, 08:40 AM

If you want to keep the income separate, then I agree with TaxesForAliens: the accountant needs to amend her return to Married Filing Separately. In filing that way, since you have no U.S.-sourced income, your wife CAN claim your personal exemption.

Now, you DO have the option of filing jointly, but that would require you sign a statement that you CHOOSE to be treated as a resident alien AND you must claim all world-wide income which you earned in 2010. If you earned NO income at all in 2010, this is the best choice tax-wise.

If you decide you need professional help OTHER than the accountant already in use, email me at kempetax@gmail.com.

kxm9228 · Oct 12, 2011, 09:34 AM

Thank you very much guys. You are very helpful.

As I stated in my other answer, I have been on a student visa in the US for over 5 years. Therefore, I am guessing that I am considered a resident alien for the 2010 tax year. But I am going to file 8840 late for 2010.

Since I have not filed 8840 for 2010 as of yet, I am considered resident alien, and, therefore, my wife CAN'T take me as a personal exemption when she amends her 2010 taxes to change the filing status to "Married filing separately", correct?

P.S. I have earned income in my home country in 2010, so the idea of filing jointly might not be worth the trouble. But thanks for bringing it up.

taxesforaliens · Oct 12, 2011, 10:16 AM

Changing her filing status would most probably not result in axes owed. So your wife could wait with amending her return until you file your forms and they are processed. However, since you will file married filing separately as well (and with her SSN on it), you might want to send both returns at the same time and add a note to her amended return referring to your form 8840.
Additionally, you can also file jointly as AtlantaTaxExpert wrote and exclude foreign earned income from being taxed if you qualify. If your income is less than the exclusion limit your wife might benefit from the lower tax rate for filing joint returns. You could do several mock returns with all he options and choose the best one. Tax software like Turbotax would allow you to do that (the desktop versions, not online versions).

AtlantaTaxExpert · Oct 12, 2011, 10:26 AM

The fact that you are considered a resident does NOT prevent your wife from claiming your exemption, just as long as you have no legal requirement to file a U.S. tax return, which is the case as long as you maintain your status as a non-resident alien.

kxm9228 · Oct 12, 2011, 11:31 AM

1) As things stand right now, can my wife amend her returns as married filing separately and not claim my exemption regardless of my "Tax Status"?
2) Why do I have to file taxes if I did not earn money in the US during 2010 (or from US sources)? I thought that she is the only one that needs to file.
3) Do I have to first become non-resident alien (by submitting 8840) for my wife to be able to claim my exemption?

Thank you

taxesforaliens · Oct 12, 2011, 11:48 AM

1)Sorry, "return" in your case would be form 8840. You wont need to file a US tax return if the IRS accepts your from 8840. ( I was a little confused. If you would file a 1040NR, you would put your wifes SSN, so they would compare your return with hers and see that she used the wrong filing status, but since you dont file a 1040NR, that would not be the case).

2) If your form 8840 is accepted, only your wife needs to file
3) If your form 8840 is not accepted, you would have to file a return on your worldwide income and it would be better in that case to file jointly (or go for an early residency termination date and be a dual status alien)

AtlantaTaxExpert · Oct 12, 2011, 11:56 AM

There are TWO posts by the same person (kxm9228). In the other post, the OP states that he arrived in country in 2005 on a F-1 visa, so his FIFTH year in country was 2009. Fuirther, he has FAILED to file Form 8843 each year to validate his student status.

this being the case, his chances of getting Form 8840 accepted are next to nil IMHO, and he would be better served to go ahead and file jointly with his wife and claim the Foreign Tax Credit (Form 1116) for the taxes paid on the home country income.

Incorrect filing status

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