[balki_2003]

Hello Sir/Madam,

I on H1B visa, working in US since Mar-2006. My wife ( who was not working) & child joined me during Aug-2006. For Year2006, I filed Federal & State tax returns as "Married filing Jointly". We also got the ITIN for both of them

During May-07, they both went back to India. Do they need to come back to US, if I have to file tax returns as "Married filing Jointly" for Year 2007. If yes, by what date they have to be in US.

Could you please clarify this.

Thanks
Krishna

[AtlantaTaxExpert]

Krishna:

For sure, you can file jointly with your wife regardless of where she is located.

As for claiming your child, In my opinion, you can still claim the child as your dependent as long as the child remains in your wife's custody.

However, to be sure, it would be best if you could show that the child was in the United State for at least six of the twelve months in 2007.

[balki_2003]

Thank You very much for the clarification

But, I have doubt.. For 2007, My wife and son stayed only for 130 days and 1/3 of 2006 is 35 days. As per substantial presence test, My wife & son falls under the category of non-resident alien for Yr2007. Is my understanding right ? Will I be able to file as "Married filing jointly" even though they don't meet the substantial present test

I understand from your answer, that I cannot claim my son as dependent and child tax credit as he is only present 4.5 months in 2007. Does he need to physically with me for another 1.5 months in US or if he meets substantial present test, can I claim him as dependent.

Thanks again for your help!
Krishna

[AtlantaTaxExpert]

The SPT does NOT apply for joint returns. She is filing as a non-resident alien spouse of a resident alien (you).

Further, you can claim your child for 2007 if he was in the United States for at least 31 consecutive days as a member of your household.