[OneSolution]

I am on H1 for year whole year 2009. I got married in Dec 09.

My wife is in India and plans to join after April 15th. Can I file as Married? She doesnot have SSN/TaxID number..

Also would you suggest to claim a extension of tax filing? Please advice

[smoothy]

Having been in a situation before my wife had a SSN/Tax ID. I will say you can neither claim her nor use her for any deductions. US tax code requires those for every person claimed (dependants) regardless of age or marital status. You will have to file as single, no dependants.

When she gats a valid visa to work here or green card she should be issued those. Make sure she actually has the required papers to be here before you bring her to save a world of trouble.

[OneSolution]

Thanks A lot for your answer... that was quick like a speed of light..

Got little confused here... so do you mean to say although I am now married, I file as single?

Also on a long run basis... should I change my status to married for my W4? Should I request my company to make a change for last year so I get more paid?

Got confused here!

[smoothy]

Because to file taxes here every dependent claimed on your taxes must have their own SSN/ Tax id. You can not file claiming someone who does not have one. Even a child.

Simply being married does not mean she is entitled to be here, and thus without proper residency status will NOT be issued the needed ID for your taxes. If she is coming legally she will be issued those. Don't assume just because YOU have papers to be here that she will automatically. I've been through the whole INS thing and trust me... assume nothing. Every person must have their own papers. And with those papers the proper ID needed for the tax forms.

And I was Born a US citizen... I married overseas and brought her back. And no it was NOT automatic with her, far from it in fact. It will be no easier or different with a H1B. The fact that you said she has no US issued Tax ID tells me she may not have legal status to live and or work here. Look into that As soon as possible if you haven't already. It can be a lengthy process. Perhaps your sponsor can be of assistance there.

[OneSolution]

Got your point... what if she joins me in before April 2010. And I apply for her Tax ID

Or

I file extension of tax for this year which gives me time frame to make sure I get tax ids etc for my wife

Want to make sure.. if I can lower my tax bill... I do my best :)

[smoothy]

You can't claim her for 2009 taxes if she did not have a tax id in 2009. If she does get one in 2010 then you can claim her for at least part of 2010. I honestly can't remember if it prorates for the entire tax year or not, its been too many years.

As I understand it filing an extension for 2009 won't make any difference as a result. You won't be able to claim her for that year. I know I was not able to file amended returns in my case for any of the previous years after the marriage but before she got her green card.

[smoothy]

Just to clarify the "What if she joins me in before April 2010" statement you made.

When she joins you living here means nothing. The date she receives legal status to be here and her Tax ID / ssn means everything. If she arrives without papers you still can't claim her.

Being you are a H1B visa holder it will be a tax ID# not an actual SSN#.

[AtlantaTaxExpert]

Smoothy:

You are giving BAD advice.

The IRS considers the couple to be married for the entire year if they are married on 31 December 2009.

OneSolution (the OP) can in fact file jointly with his wife. The wife can CHOOSE to be treated as a resident alien, even if she is physically located in their home country. Her physical location is irrelevent; she could be on Mars for all the IRS cares. She does have to declare any world-wide income she received, and she does have to sign both the Form W-7 (to apply for an Individual Tax Identification Number; submitted with a notarized photocopy of her passport) and the joint tax return.

I have posted these procedures multiple times on this forum.

[smoothy]

What I mean is if SHE does not have a SSN or Tax ID he can not claim her as a dependent. ALL dependents Must have them or they can not be claimed. And it has been the law for well over 15 years. The point being is SHE does not have a green car OR tax ID at this time. I've personally been through this prior to my wife receiving her green card. IF he claims her with falsified information its Tax fraud.

I think you missed where he mentioned that important fact.

I am on H1 for year whole year 2009. I got married in Dec 09.

My wife is in India and plans to join after April 15th. Can I file as Married? She doesnot have SSN/TaxID number....?

Also would you suggest to claim a extention of tax filing? Please advice

As he said above.

If she does not have a tax id in the year 2009, then how can he claim her for 2009? Its not going to happen because its already 2010 and IRS Code REQUIRES one or the other on the tax form for every dependent.

If she gets it THIS year in 2010 he can claim her in 2010.

[AtlantaTaxExpert]

Smoothy:

I prepare returns like this all of the time.

I have prepared HUNDREDS of returns requesting ITINs for spouses who have NEVER been in the United States over the past ten years.

The law is clear: couples CAN file jointly provided they meet the criteria specified in IRS Pub 519 (one spouse being a resident alien, the second spouse CHOOSING to be treated as a resident alien). NOWHERE is there ANY requirement that the spouse choosing to be treated as the resident alien be located within the U.S.

You MAY want to download IRS Pub 519 and read the section about FIRST YEAR CHOICE before commenting further.

[smoothy]

So then, exactly WHEN did the law change BACK allowing him who has a valid tax ID(as he holds a H1-B Visa) to claim a dependent who has neither a valid tax ID or Social Security number.

If he wants a guarateeed audtit from the IRS then let him try claiming dependents whom do not have the required identification, Its an automatic flag.

I've been there, IRS code did not allow me to file amended returns for the THREE years I was disallowed an exemption for my wife BEFORE she was first issued a Tax ID, which was before she gained citizenship and was issued a permanent SSN. I'm not arguing he can't claim her as a dependent for the entire 2010 tax year assuming she is actually issued either ID this callender year.

If you wish to insist that no tax ID is needed for him to claim a dependent, then I want you to quote exactly where this is in the tax code as its clearly a requirement.

He says at this time she does NOT had one of those. THAT is a very important aspect if he wishes to not get in trouble for a few bucks.

As far as the IRS is concerned... you don't have a dependent if they do not have a USA issued Tax id or SSN proving they are elligible.

Claiming a dependent without an ID is fraud... Claiming a dependent with a false ID is fraud.

I am certain the OP has no interest in committing a fraud that would end his H-1 eligibility status. Sure once SHE is issued a tax ID she is a valid dependent and can be claimed. But not until then. Even Children are required to have A SSN or Tax ID to be legally claimed as a dependent on the tax returns.

[OneSolution]

Thanks for the reply...

So what I plan to do is... Get a extension for my Tax filing...

When my wife joins me in April, I will apply for her Tax ID, and file the taxes with the Tax ID she gets...

Also Somewhere someone said, I can combine my tax returns and with that attach W7 with required documents to get a tax id for my wife...

So extension and then tax id + Tax file===. Seems to be a best option

[AtlantaTaxExpert]

OneSolution:

When you submit the Form W-7, a notarized photocopy of your wife's passport must be stapled to the Form W-7. You can get the photocopy notarized at any local bank in most states, or, barring that, at your local IRS office.

The Form W-7 MUST be submitted with the joint return; it is, in most cases, the ONLY time the IRS will accept Form W-7 for an ITIN.

Smoothy:

It is clear that you do not believe me. You can verify my posting about this subject by sending a Private Message to one of the other tax experts in this forum (Five Rings, MukatA, IntlTax, Texas Tax Expert) or, better yet, you can call the IRS International Tax Hotline at 215-516-2000 and discuss it with them.

[smoothy]

Smoothy:

It is clear that you do not believe me. You can verify my posting about this subject by sending a Private Message to one of the other tax experts in this forum (Five Rings, MukatA, IntlTax, Texas Tax Expert) or, better yet, you can call the IRS International Tax Hotline at 215-516-2000 and discuss it with them.

You are not right... because according to IRS regulation not to mention the instruction that practically any tax preparer will agree with every person on a tax form... including ALL children and spouses are REQUIRED to have and use a TAX ID if they do not have a Social Security number issued to them.

THAT has been in effect for nearly 20 years now to cut fraud (dependents that don't exist) or separated parents from BOTH claiming the same children as dependents. Any tax preparer that that argues otherwise on such a basic issue makes me question their knowledge on any part of the tax code. Take that as you wish... At first I gave you the benefit of the doubt and assumed you missed that point... but now its clear you believe you don't actually HAVE TO HAVE that information on every dependenant on your tax forms.

By telling people that bit of information ( Tax ID/ Social Security number) is optional instead of required you are opening anyone who takes your advice up to possible severe legal and financial penalties being imposed by the IRS. Do you actually put your credentials on the peoples tax return forms as the preparer where you are liable for a certain percentage of such a fraud, or do you avoid doing that so you aren't implicated when they are audited like the less qualified preparers do? And any form that gets through their computer audit WILL fail and be rejected and likely flag a one on one audit of their previous returns as well.

And personally I fear the IRS more than I fear local the thugs... they can, will and do seize you assets and bank accounts and leave you having to prove your innocense before you can get them back.

I've talked with several accountants/ tax preparers on this that I know and every single one agrees with me that you HAVE to have a TAX ID, or SSN for any and every dependent on the form, including the person whom that tax form is for.


From the IRS website proving you MUST have that information.

http://www.irs.gov/businesses/small/...=96696,00.html

[OneSolution]

Guys... I didn't wanted to start a thread leading to a argument... My only intention was to have a healthy debate/ comments/guidance...


Lets work in a team and have a good debate rather than challenges thrown across...

Cool down

[smoothy]

My best wishes in your wife getting permission to come here. Has she been issued a Visa yet? If she has you have most of the hard work done and it shouldn't be that difficult to get the TID. If you haven't even asked yet you might find the wait is long. That's why I asked originally if your sponsor could assist. I know a LOT of foreign born people working here legally that are trying to get family here.

[AtlantaTaxExpert]

Smoothy:

I have signed every tax return I EVER prepared as a professional, and frankly, I am more than insulted by your implication that what I am doing is illegal.

HAVE YOU EVEN READ ANY OF MY ANSWERS ON THIS FORUM??

If you HAD read my other posts carefully (and they believe they go back to 2005), you would see that I am instructing the posters to submit Form W-7 to apply for an Individual Tax Identification Number.

Nowhere have I EVER told a poster to claim a dependent or to file jointly without applying for an ITIN or without submitting that person's SSN. Such a JOINT return (one without an SSN or an ITIN or without an application for an ITIN) would be rejected.

Now, I have told clients who have non-resident alien (NRA) spouses with whom, for various reasons, they have chosen NOT to file a return, i.e. they are filing Married Filing Separately (MF), that they can and MUST insert their spouse name on the MFS return and put the letters "NRA" (for Non-Resident Alien) where the SSN would go. Once they do that, and if the NRA spouse has NO U.S.-sourced income, they can also claim their spouse's personal exemption.

Go to Internal Revenue Service and download Form W-7 and READ THE INSTRUCTIONS!

Then download IRS Pub 519 and review the part that covers the option of qualified married couples for filing jointly under the First Year Choice Program.

Or call the IRS and ASK! Unlike the normal IRS hotlines, the International Tax Hotline rarely has a long wait, especially if you call after 7 P.M. (they are open until 10 P.M. EST).

[Trishala Raj]

Hi,
My friend came from India to do his Masters here in 2005 on F1 visa. His wife and 2 kids joined him only in 2007 when he was on an H1B visa. In 2005 and 2006, he did not claim his wife and kids on his return. Could he have claimed them? His wife and kids applied for an ITIN only when they came to US i.e. 2007. Can we go back and amend his 2005 and 2006 return to claim the family?

Thanks in advance.

[smoothy]

Fine... Why don't YOU fill OUT your own Tax returns and OMIT SSN's on it if you claim they aren't needed... how about every tax form you fill out this year.

Bet you won't do it. I most certainly would never do that.

You can't seem to read or care about what the IRS has to say on the matter.

Personally... I don't trust your comments because you refuse to accept this simple fact.

After all, you can say anything you want. Are you going to be held legally and finacially responsible for people when they IRS drags them in for audits after their returns are rejected for claiming dependents without the required Taxper identification... which the IRS says is either A TID or a SSN.

The answer is no you won't. No skin off your back. And I don't believe you have done any and certainly not many returns for people with Foreign spouses and children who the USA has not yet given legal permission to reside here. Because a couple might have escaped an audit by luck... so far, but not all if you had done many.

Do you also recommend that all your customers claim a few extra kids as well since after all, if you don't need the required unigue and IRS recognised ID's how can anyone prove they don't really exist.

Exactly how many tax returns have you filled out while committing this fraud?

And for the H1-B Visa holders readiong this thread... do you want to take the chance of getting caught doing this, and having your H1-B revoked and being sent back to the country of your origin? That's a quick way to get tossed out.

I'm pretty sure they don't. And its really clear to anyone fluent in english with the IRS provided information I linked in a previous post. And the OP has presented his questions in very good english, he can read what the IRS says in the matter. They after all is who has to has to be pleased that their rules and requirements are met on returns.

There has been no IRS linked post that proves that information is not needed.

I consider this case closed to further argument... because you presented NO proof DIRECTLY from an IRS hosted link (Because that can't be fudged by a third party) that you can claim anyone you want on a tax return with NO accepted supporting information in the last 15+ years... they closed that loophole back in the early 90's people were using to cheat on their returns. Where-as I have provided such proof.

I quoted and presented links to the IRS site that clearly says this, its not what I say, its what THEY say, that's whi I posted the link... ATE is NOT an agent or employee of the IRS and says otherwise. And I will not argue that what the IRS says is either wrong or can't be enforced.

Pick which you would rather believe. All the arguing in the world does not change what the IRS has said on this, and its unproductive. The person who disobeys the IRS rules on their return forms is who will suffer ALL the legal and financial consequences. Not some faceless name you never met on the internet.

If the IRS disagrees with you, then you are guilty until proven innocent... and will block access to your assets until you prove otherwise. I don't agree with this... but they have the power to do it.

I don't believe that risk is worth taking. Legal fights are costly, and the odds are stacked against you. Particularly with the IRS.

[AtlantaTaxExpert]

You want IRS links; fine!

Here is the one for the procedures to apply for an ITIN from abroad:

Obtaining an ITIN from Abroad

Here is the one for a non-resident spouse treated as a resident:

Nonresident Spouse Treated as a Resident

Here's the one for Tax Question for International Taxpayers; you will noted that it has the phone I provided for you to call the IRS International Tax Hotline:

Help With Tax Questions - International Taxpayers

And, for your further education, here is one about foreign student liability for FICA taxes:

Foreign Student Liability for Social Security and Medicare Taxes

These should keep you busy for awhile.