[rk83]

Dear experts,
Here is my situation:
History:

1. I was in US on L1B from 26th Sept 2010 to June 13th 2012.
2. My Wife joined me L2 on 25th Oct 2010 and was here till 2nd march 2012.
3. Both of us had SSN but wife didn't work.

Current Situation

1. We had a baby in India in Aug 2012.
2. We all moved to US on 29th Sept 2013 and are still here. Now, I am on H1B and wife and baby on H4.

Questions:

1. Can I mention my wife's SSN that she got while she was on L2 on 2013 return?
2. Can I claim my child as dependent on my 2013 return?
3. As the child doesn't pass SPT for 2013, would I be eligible for child tax credit/additional child tax credit?
4. Can first year choice be made in case of child also?
5. If there is no way I can claim my child as dependent then is it mandatory to apply for her ITIN? or can that be done next year?

Thanks in advance!

[AtlantaTaxExpert]

For 2010 and 2011, you could have filed jointly with your wife. Yes, you CAN use the SSN that has been issued to her on the 2010 return on all subsequent returns.

You were eligible for First Year Choice with the joint return option in 2010, provided you claim all world-wide income and claim the Foreign Tax Credit using Form 1116. If you did NOT file jointly in 2010 and wish to do so, that amendment MUST be mailed NO LATER THAN 15 April 2014, or you will lose any additional refund due.

For 2012, you had the option of filing a joint resident return even though you left the United States on 2 March 2012. You would have had to report all world-wide income and, again, claim the Foreign Tax Credit using Form 1116. You could NOT claim the child on the 2012 return because the child spent NO time in the United States in 2012.

For 2013, YOU and YOUR WIFE can again file a joint return under the "continuous presence" policy, claiming the Foreign Tax Credit using Form 1116. You could also amend the 2012 return to EXCLUDE the income earned in India in 2012 using Form 2555. Modeling would be needed to determine which way is best: Excluding the income using Form 2555 or claiming the Foreign Tax Credit. If you amended to exclude income under the 2012 amendment, you could THEN exclude income from 1 January to 28 September 2013 on the 2013 return.

The CHILD CAN be claimed on the 2013 return under First Year Choice, which would mean you would have to WAIT until 1 June 2014 to file the return, but allowing you to claim the $1,000 Child Tax Credit. You would also have to apply for an ITIN for the child.

If you need professional help with these various returns and/or amendments, this IS what I do! Please email me at the email address in my profile.

[rk83]

Thanks for the reply. By the way, can I file my return now without claiming my child as dependent and then after 1st June file an amendment of my 2013 return to include child tax credit?

[AtlantaTaxExpert]

Yes, filing without the child, then amending the return after 1 June 2014 IS an option.

[shekhartpc]

Thanks for the post and it was useful

Can I get clarify if the First Year Choice day;s are calucated per calender year of the date of filing

My case. I had a baby in US ON 27TH DEC AND MY consultant said can file for my wife and me for join and the new bron
I have one more elder daughter for that they say they cannot file as she has not completed 183 day;s as on 31st dec
But she crossed 183 day;s as of today where I am going to file the tax

Is the would be rejected if I file for my elder daughter?
Appreciate the helpful answers and direction

Thanks,chandra

[AtlantaTaxExpert]

You can only count one-third of the days from 2013 in the Substantial Presence Test formula. You CAN file with both daughters, but you have to wait until sometime in May so your elder daughter can meet the Substantial Presence Test.