Hello,

My wife is legal permanent resident of the US (green card holder). We got married in January 2010 and I left the US in February 2010. I did not have any US income in 2010. The accountant that prepared her taxes for 2010 filed as single even after she had told him that we were married and that I was living in a different country.

My understanding is that he filed it wrong and that it should have been married filing separately. Could you please advice on the matter?

FYI, I meet the substantial presence test for 2010 but never filed form 8840 to establish connection to foreign country since I was present in the US for less than 183 days and had no income in 2010.

Thank you

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.

She would have to amend her return for 2010.

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 [email protected].

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.

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).

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.

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

1)Sorry, "return" in your case would be form 8840. You won't 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 wife's SSN, so they would compare your return with hers and see that she used the wrong filing status, but since you don't 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)

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 In my opinion, and he would be better served to file jointly with his wife and claim the Foreign Tax Credit (Form 1116) for the taxes paid on the home country income.

Ok guys thanks for the replies. US tax code is surely very fun :) I am going to bombard you with some more questions. Please stay with me.

I am going to combine the two threads into one now. My understanding is that since my "Tax status" is still up in the air, my wife should hold off with her amendment for 2010 because a)if I can become non-resident alien for 2010, then she can amend to married filing separately and I don't have to file, b) if I can't become non-resident, then we have to amend jointly with our world-wide income for 2010 and claim the Foreign Tax Credit.

Below I will give you some more information and have some questions. Thank you very much in advance.

- The last time I entered the US was in July 2000 (with the exemption of a return from 2 week trip to Canada in 2009)and from July 2000 - February 22, 2010 have always been in the US except the 2 week period in Canada.
- I don't recall exactly when, but during this period I may have submitted 8843 for couple of years. But for the most part I have not submitted the form because the international student services has never made this an important issue and, as a result, I have never remembered that an international student had to submit one.

1) If I do want to file 8840 for 2010, do I have to also submit 8843 for 2010?
2) To improve the chances of acceptance of 8840 for 2010, can I send 8843 for prior years? If yes, how many years of 8843?
3) How long does it take IRS to accept/deny 8840? How are you notified about the decision by IRS?

Thank you very very much

Note that the decision to file a joint return is irrevocable, meaning that once you file the joint return, you CANNOT amend to Married Filing Separately.

However, if she files Marruied Filing Separately, you CAN amend to a joint return. Thereafter, the joint decision is irrevocable.

If you want to retain your non-resident status, submit all of the past year Form 8843, plus the 8840, and wait for an answer form the IRS. They should respond within three months.

Thank you very much for the replies.

1)Correct me if I am wrong. An international student has to file 8843 every year including the first 5 years in the US and after 5 years in the US to maintain a non-resident status for tax purposes, correct?
2) OR if an international student is in the US for more than 5 years, he/she is CONSIDERED resident alien for tax purposes, regardless of whether he/she has submitted 8843 for the years after the 5th year in the US.

IF point 2 is correct, I should have been considered resident alien for 2010, 2009, 2008, 2007, 2006, 2005, 2004, and so forth since in these years I have been present for more than 5 years in the US.

I don't think I fully understand the purpose of submitting 8843 for 2010 and the previous years. I have been considered resident alien, what's wrong with it? But now that I am no longer residing in the US (I don't have a Green card), I want to claim closer connection to a foreign country (the country where I live and I am citizen of). Does the law prevent me to switch from resident to non-resident alien?

The Form 8843 is submitted to validate your non-resident status, be it as a F-1 student or a J-1 student or a J-1 trainee or a J-1 teacher. If you fail to consistently submit the Form 8843, your status as a non-resident alien comes into question, though it is not revoked. Failure to submit Form 8843 can be used as a basis for denying a closer connection to the home country.