Hi,

My husband is on F1 since 2007 August, I came to US in Aug 2005 on F1 and worked on OPT from Jan 2008 to Oct 2008 and then currently working on H1B from Oct 1st 2008.I earn 60k per year. We got married in December 2008.I wish to file my 2008 taxes for April 09. But I have the following doubts.

1) Do I file 1040 NR-EZ? Or 1040 NR as I'm a non-resident? Or Do I file 1040 EZ as resident alien?

2) Can I file married filing jointly with my spouse ( He is a non-resident as he is still a student) or can we just file as "single"?

3) If we file jointly, does my husband also have to may the social security and medicare taxes along with me?

4) My husband gets scholarship. So he is eligible for more refund than me. Would it affect his refund if he files jointly with me?

I would appreciate any help regarding this.

Thanks,
Lalitha

You have at two choices on how to file for 2008. You can file Form 1040NR as a nonresident alien. Although this is the simplest approach, you may pay more tax under this approach (you will not be able to file jointly with your wife, claim any standard deduction, or claim an exemption for your wife).

Alternatively, you can elect to file a joint tax return (Form 1040) with your wife where you both will be treated as U.S. residents for the entire year. By electing to file a joint tax return, you will both be subject to U.S. tax on your worldwide income for the entire year 2008, and you both will be subject to FICA taxes on your U.S. source wage income for the entire year 2008. However, you will be able to claim a standard deduction of $10,900, as well as two exemptions ($7,000).

You cannot elect to file a joint tax return for 2008 until you meet the substantial presence test in 2009. You may need to extend the filing of your tax return to meet this requirement.

If you file jointly and your spouse does not yet have an ITIN, you need to include Form W-7 with the tax return along with the documents indicated in Form W-7.

Depending on which state you reside in, you may also be required to file a state income tax return.

Thanks for your quick reply. It was very helpful.But I still have some doubts.

1)So if I choose the simple approach and both of us file 1040 NR. Do we have to fill it as married filing separately or "single"? And what is difference between 1040 NR-EZ and 1040 NR?

2) If we choose to file 1040 as residents, how long would we have to wait to pass the substantial presence test?

Thanks,
Lalitha

Since you were married on the last day of the year, you are considered married and cannot file as single. You must meet certain requirements to file Form 1040 NR-EZ. See http://www.irs.gov/pub/irs-pdf/i1040nre.pdf

To file as residents, you would need to wait until June 3, 2009.

Thanks for the reply.

Do I need to file for an extension if I need to file as a resident after June 2009?

Also, my husband got a scholarship in 2008 and is entitled to more tax refund than me. Would it affect our returns if we file as married filing jointly?

Thanks for all the help,
Lalitha Sankar

Hi,

Also in your above reply, what are the two exemptions($7000) that we could claim?

Thanks,
Lalitha

Lalitha:

Hopefully you filed the Form 4868 extension, ut if you did not, it is NOT a real problem if you are due a refund under the joint return.

Just wait until 3 June 2009, then file jointly with your husband.