[rbkrams]

I have an L1 visa and have been resident in the US since 1st Jan 2006. I am married and my wife accompanied me on L2 visa, and is also resident with me since 1st Jan 2006. While I work in the US and have an SSN, my wife does not work (and is also not eligible for SSN), and also has no income. She also does not have an ITIN. I pass the "substantial presence test" since both me and my wife were in the US for the entire 2006, and so I qualify as a "resident alien". I have the following questions with regard to my wife's status:

1. Since she also stayed in the US beyond 183 days, is she also considered a resident alien (or is she considered a non-resident alien because she is not eligible to work)?

2. When filing my income tax this year, should I file jointly with my wife or separately? Since she does not have an ITIN, should I file jointly, with a W-7 form for her along with my tax filing? Does she even have to file, as she does not have any income?

3. Must both individuals on a joint filing have an SSN, or can one of them have an ITIN, as would be the case for my wife?

4. For her W-7 form, can I check option "e", which means "Spouse of US citizen/resident alien"? (The instructions say that this is when the spouse is a non-resident alien, but I am not sure if my wife is considered a non-resident alien).


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Thanks.

[AtlantaTaxExpert]

You should file jointly as resident aliens. Since you arrived in the U.S. on 1 January 2006, you meet the criteria for such filing. Fill out the joint return with your wife's name below yours. Leave the SSN portion for your wife BLANK.

Fill out Form W-7 and check option "b", as she is considred a resident alien as well. She must sign the W-7. Attach a notarized photocopy of your wife's passport to the W-7 and send it with your tax return to the address n te W-7 instructions.

The IRS will review the W-7, issue the ITIN, insert the ITIN in the BLANK SSN area for your wife, then process the return. They will send your wife her ITIN under separate correspondence. Once she receives her ITIN (it will take about six week), you can then file your state tax return.

If you need professional tax help, please contact me at [email protected].

[rbkrams]

Thank you for your answer! Is it possible to combine the filing of the federal and state returns in this case? I live in Ohio state. What needs to be done to combine the federal and state returns?

[AtlantaTaxExpert]

You CANNOT combine the filing. If your wife already had an ITIN, then you would be able to file both returns simultaneously by filing electronically. The lack of the ITIN makes this impossible.

You have to wait for the ITIN before you can file the state return. If you mail it in with your federal return, the IRS will merely return it to you. If you submit it to Ohio without your wife's ITIN, it will be rejected and you'll just have to file it again.