[staxreturn]

Hi There,
My wife was in USA from 2002 and 2006. My wife has ITIN number and my son has SSN. She and my son have not been to USA for this calendar year (2008). My question is that can I file tax returns jointly married for 2008 and claim them as dependants even though they have not been in USA for 2008.

Regards,

[MukatA]

Yes, you can file joint return as residents even if your wife was not in the U.S. Your spouse is never your dependent (on the tax return).
You can not claim your son unless he is U.S. citizen or resident for 2008.

[staxreturn]

Hi MukatA,
Thanks for the reply. My son is a US citize and holds USA passport so I am assuming that I can claim him as dependent. Thanks for your reply.

[MukatA]

There is a requirement to claim the child:
Residency Test. The child must have lived with you for more than half of the year except for temporary absences.

In your case, even if the child lived with his mother, you can claim him dependent.

All this is based on the assumption that you are resident in the U.S.

[AtlantaTaxExpert]

The fact that your child is a U.S. citizen AND he is living with your wife allows you to claim him as a dependent.

If he was NOT a U.S. citizen, you could NOT claim him unless he spent at least SOME time in the U.S. in 2008.

[staxreturn]

Thank You Guys. I came to USA in October 2008 so is this going to make any difference.

It looks like I can claim my son as dependent, can I claim my wife also dependent she has not been to uSA this calendar year.

Regards

[AtlantaTaxExpert]

You CANNOT claim your wife as a dependent if she was NOT in the U.S. in 2008.

However, you CAN file jointly, regardless of her physical location. She could be on Mars for all the IRS cares.

If you came in October 2008, you will need to wait until June 2009 to file jointly, because you have not yet met the Substantial Presence Test (SPT).

Once the SPT is met, you can file, which means you must be in the U.S. from 1 January 2009 to the date you file the return.