Hello

I am a resident alien, working on an L-1 visa.
My child was born in India in 2012 and came to US on Nov 8.

He cannot get SSN as he is on L-2 visa and a minor.

I am applying for his ITIN.
He does not meet substantial presence test.

Can I make first-year choice for him, even if it is not applicable for me and my wife?

Thanks
Ajay

Ajay,

Yes, the First Year Choice criteria applies to your child, which means you needed to wait until late June 2013 before filing.

Since it is September, you need to apply for the ITIN for your child with the tax return. The best way to do that is through a Tax Assistance Center that verifies passports as authentic.

Email me if you need further advice or professional help filing.

Thanks, AtlantaTaxExpert.

Is there a standard form for first-year choice, or do I just have to write a letter?

Who should the letter be addresssed to?

Thanks
Ajay

The First Year Choice statement is not required for the child.

Just submit the Form W-7 with the tax return.

The First Year Choice statement is not required for the child.

Just submit the Form W-7 with the tax return.

I went to IRS on Fri. They said they won't give them ITIN as he doesn't pass substantial presence test.

So, I was planning to go back to them with a First Year Choice statement.

Ajay,

For the 2012 tax return, I HAVE submitted ITIN requests for children who did not meet the Substantial Presence Test (SPT) in 2012, but subsequently met SPT in 2013, and those children were issued ITINs and the parents could claim them as dependents.

However, there is NO written guidance on whether this is legal or not, so I called the IRS and asked for guidance. That is when I found out that there is NO written guidance, so the IRS has referred the issue to their Tax Law department, who will research the issue and send me a definitive ruling as to whether First Year Choice applies to children as well as workers and spouses.

I have a reference number, and, per the IRS telephone representative, I should get an answer via email by sometime next week.

If you email me (my email address is in my profile if you do not see it below), I will forward to you the answer when I get it. If it comes back that you CAN get your child an ITIN and claim him as a dependent, you can use the email as proof when you go back to the IRS Tax Assistance Center.

Wow! Thanks for doing that!
I am sending you my mail id separately.

Thanks
Ajay

No problem; I will use the email in my CAA and tax business as reference material.

I await your email.

Hello

Do you know by when will IRS get back to you?

The IRS WILL send an answer eventually, but exactly HOW LONG it will take is anyone's guess.

Hi ATE,
Did you get an answer from the IRS? I would be interested in that too.

Thanks

Yes, the IRS DOES apply the First Year Choice standards for Substantial Presence Test for children as well as adults, which means tax returns may have to be delayed until the child meets the Substantial Presence Test under First Year Choice in order to be claimed as a dependent.