[mgeneral]

Hi,
I am on green card, while my spouse is on F1. I live in California, while my spouse lives in NY. For federal tax purposes,
1. I have to use 1040 if filing jointly ? (Can I get benefit from tax treaties for my wife's income ?)
2. For California, I can file 540 NR, married filing jointly, reporting my income as derived from California soures, and my wife's income as not derived from California.
3. For NY, can I file married filing jointly, again as a non-resident, and using the non-resident form ?
Thanks
Joseph

[Catseyes]

I am not sure you can file jointly for the federal return as you have to file as resident, but she should file as NR. ( maybe you can use the first year choice, but I have doubts ).

( Besides, I just wonder how she managed to get a F1 visa knowing she was married to a LPR : that is in disagreemnt with the ' no intent to immigrate ' :confused: ) .

Anyway, I think she can only claim tax treaty benefits if she files as NR, but check with the tax treaty.
Usually, the treaty is nullified when the person becomes a resident. However, some treaties say that it is till okay if the person has to file as R because of the 5-year rule ( for F1 students ).

To me, you should file 'married filing separately' : you as R, and her as NR.

For the state taxes, see the state's guidelines.
Which state does she consider her permanent place of abode ? I would say it is CA as you live there.
Then, I would do what you said for CA.
Now, for NY : did you live in NY ? So, I would say she should file married separately ( as a NR ), but you wouldn't need to declare your income.

I am not familiar with those states though, so read the instructions to make sure.

[mgeneral]

Hi,
We married after she was an F1 student for a few years, and last year she lived in NY as a full year resident, while I was a full year CA resident.

For federal, don't I have the choice to file as a resident ? It is just that I will lose tax benefits ? If I file married filing separately, our taxes are much higher than married filing jointly.

For NY and CA, which form should I use ? Non-resident forms for both states ?

Thanks
Joseph

[AtlantaTaxExpert]

YOU must file as a resident alien. Your choice involves your wife. She can file as a NR (Form 1040NR), or she can choose to be treated as a resident alien and file jointly with you. If she files jointly, then, In my opinion, she forfeits all treaty exemptions.

For NY, you should file Form IT-203 and exclude the CA-based income.

I do not have my references with me, so I cannot say which CA forms to use.

[mgeneral]

Thank you, Atlanta Tax Expert. I had a couple of follow up questions.
1. Since she files jointly with me as a resident for Federal tax, does that not make my wife also a resident of NY (even though she is an international student, which is normally considered non-resident) , and would form IT-201 be the form to file ?
2. Does my wife have to start paying social security tax, because is considered resident in 1040 (due to married filing jointly ?)

Thanks
Joseph

[AtlantaTaxExpert]

Joseph:

1) If she files jointly with you, then she would use the Form IT-203 because you are a part-year/non-resident of NY. Same applies for CA; you would file a joint part-year/non-resident return for CA because SHE is a non-resident of California.

2) Not necessarily. Her visa status drives the collection of Social Security and Medicare taxes. However, if she had money improperly withheld while she is on F-1 visa status, her filing as a resident alien will affect any attempt to claim a refund of those taxes.

[mgeneral]

Dear Atlanta Tax Expert,
Thank you very much for your concise and to the point reply. Your replies really helped clarify.
Thanks
Kamal

[AtlantaTaxExpert]

Glad to help!