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khilker · Feb 13, 2008, 07:26 PM

Greetings, I am hoping to get the attention of AtlantaTaxExpert! :)

A little background...
Last May my girlfriend (P.R.Chinese citizen) graduated from college and started her OPT as of June '07. From Aug - Dec she eared $2700 which was reported on a MISC-1099. We were also married in December '07.

Now...
I am looking for a little validation here: I need to file my taxes as "married filing separately)" and submit a 1040NR-ez (married) with a schedule C for my wife. Is that correct? Do I need anything else like an 8843?

Thank you for your help!

MukatA · Feb 14, 2008, 05:12 PM

1. You can file as Married Filing Jointly. In that case your she will pay SE taxes on her 1099-MISC income. For SE taxes she files schedule SE.

2. Other choice: You file as Married Filing Separately and she files nonresident tax return. She will not pay SE taxes. She will also file 8843.

khilker · Feb 16, 2008, 03:18 PM

Thank you for your help! When counting her excluded days from the substantial presence test, does her OPT time count as "student" time?

MukatA · Feb 16, 2008, 03:24 PM

The exemption is for 5 tax years.

khilker · Feb 16, 2008, 03:35 PM

One other question... I had originally done the tax refund math as married filing jointly, but now I know better. Once I changed TurboTax to "filing separately" my tax refund was cut in half! Is that correct??

What immigration status change is necessary for us to start filing jointly for next year?

khilker · Feb 16, 2008, 03:36 PM

As a fallow up... can I claim her as a dependent to help bump up that refund?

khilker · Feb 17, 2008, 08:23 AM

Is there any third choice in which we can file jointly? By filing separately, my wife's entire income is canceled out by the loss of the tax return.

Originally Posted by MukatA

1. You can file as Married Filing Jointly. In that case your she will pay SE taxes on her 1099-MISC income. For SE taxes she files schedule SE.

2. Other choice: You file as Married Filing Separately and she files nonresident tax return. She will not pay SE taxes. She will also file 8843.

AtlantaTaxExpert · Feb 29, 2008, 02:32 PM

Nope. MukatA has covered all the options rather well, which is the NORM for him.

khilker · Mar 1, 2008, 02:06 PM

Thanks to both of you for your help. I just found the below IRS link and I think I am going to try filing jointly using their instructions. If this gets approved, the math works out much better for us!

Nonresident Spouse Treated as a Resident

MukatA · Mar 3, 2008, 12:33 AM

Complete Form 1040 as Married Filing Jointly. With the return attach a statement that as a First Year Choice we make this chice to file as residents. The statement must be signed by both of you and should have SSNs (or ITIN).