[paragsaxena]

This is regarding filing JOINT tax for 2009 as Resident Alien. I heard different versions from different consultants, I too read IRS publication 519 but further got confused. Find below the details-

a) I am married and have a kid, initially I came to US on L1 in July 10 2009. This was my first trip to US.
b) My family joined me dec 6 2009. They have L2.
c) For a period of 10 days I was away from US between 25th Nov to Dec 6 2009.
d) I will be residing in US for complete year of 2010 and 2011.
e) My wife is not working in US and I need to apply ITIN for her and kid.

Under IRS guidelines can I file Joint tax as First Year Choice Resident Alien with extension. It seems I need to disclose the salary earned in my country before coming to US.

[MukatA]

Choice 1: You can file non-resident tax return. You can also deduct moving expenses. Use form 3903.

Choice 2: You can file resident tax return as Married Filing Jointly as First Year Choice. You will have to wait for about 4 months to file your tax return till you meet the Substantial Presence Test in 2010. Your U.S. Tax Return: Substantial Presence Test

You will get standard deduction of $11,400 and exemptions ($3,650 each) for both of you and the kids. You must both declare your worldwide income for 2009. If you have any foreign income, and on that income you paid taxes in the foreign country, then you can claim foreign tax credit (Form 1116) or you can use Foreign Earned Income Exclusion (Form 2555). Your U.S. Tax Return: U.S. Citizen or Resident with Foreign Income

You will complete forms W7 (application for ITIN) for your spouse and children and attach with your tax return. You can also deduct moving expenses. Use form 3903.

[paragsaxena]

Dear Mukata, Thanks for the information. Today I spoke with IRS regarding- Dual Status Alien, filing as Joint Resident Alien with extension.
Surprisingly, they mention another factor.
Even though I will be qualifying Substantial Presence Test including Few months of 2010, but one of the member should be Resident Alien for Year 2009.
As per IRS guideline mentioned in form 519-

Choosing Resident Alien Status

If you are a dual-status alien, you can choose to be treated as a U.S. resident for the entire year if all of the following apply.
 You were a nonresident alien at the beginning of the year.
 You are a resident alien or U.S. citizen at the end of the year.
 You are married to a U.S. citizen or resident alien at the end of the year.
 Your spouse joins you in making the choice.
This includes situations in which both you and your spouse were nonresident aliens at the beginning of the tax year and both of you are resident aliens at the end of the tax year.


Given this factor, they said I do not qualify to file tax as Joint Resident Alien including WorldWide income as First Choice.

I had words with "Visa Taxes Expert", and they said I can file 2009 tax as Joint Resident Alien, where as another Tax consultant "AO Tax", is inline with IRS people, i.e. NonResident.

Once again thanks for the reply.