[hedaye]

I came to the U.S. in October 2007 on h1b. Since I have never left MA, I filed my return as resident alien for 2008. My wife came in March 2008, then she traveled couple times between China and the U.S. Then she brought my son to MA in March 2009.

I submitted W-7 for both my wife and my son. According to AtlantaTaxExpert, the resident alien status should be extended to my wife and my son.

Though, I did not make a statement in the mail saying that my wife and I choose to be taxed as resident alien.

Now my wife got her ITIN, but my son's request was turned down. Any child dependent tax credit is disallowed.
How do I appeal with the ITIN administration? Is there anything written to support AtlantaTaxExpert's theory?

[Five Rings]

When did you submit the W-7 request?

The child fails the residency test unless made after March.

What did the ITIN refusal letter say?

[hedaye]

I submitted the W-7 request around 3/15. My son arrived on 2/28/09.

The letter from IRS says my son doesn't meet the physical or substantial presence test.

Did IRS changed rules after March?
According to AtlantaTaxExpert, even though my son doesn't meet the test, the resident alien status should be extended to him.

Here's the link

https://www.askmehelpdesk.com/taxes/...ent-50422.html

"Under this exception, it does not matter that your familt was not in the U.S. in 2006. The choice to be treated as resident aliens extends to the children as well, just as long as the children are with one of the parents throughout 2006.
__________________
Hope This Helps!

Atlanta Tax Expert"

[Five Rings]

For tax year 2009 your son will plainly be resident by substantial presence by the end of the year. When you file for 2009 apply for an ITIN at that time and you will get his number.

Send everything to the ITIN Operation.

I see nothing in the publications to say that a child may make any choice; only a spouse.
Obviously your wife satisfied the SPT for 2008 and got her number.

[MukatA]

Your child is not resident in the U.S. for any part of 2008, so child is not dependent on 2008 tax return.
You can attach child's W7 with 2009 tax return.

[AtlantaTaxExpert]

For several months in 2007/2008, I advised on this form that a couple COULD claim their child as a dependent if the child was in the custody of one parent for the entire year, even if the child was NOT present in the U.S.

I have since learned that the child must spend at least part of the tax year within the United States in order to considered a dependent on that year's tax return.

Hence, your child could NOT be considered a dependent for 2008, which is why his ITIN application was denied. Re-submit for 2009 and it will be authorized, provided you can show via his visa that he was present in the U.S. in 2009.