[demi]

Dear Experts,

I am in US from Mar '2006 and working on H1B Visa. And my spouse & 1 year old kid joined with me on Sep' 2006 on H4 Visa. Between I changed my job to another employer on Dec ' 2006. And I didn't received W2 from my previous employer till date.

1) What are all the possibilities to filing Tax without one W2 at worst case? Is that previous payslips will help in this case?

2) I am more confused with Substantial Test, Tax filing status and also my spouse don't have ITIN number yet and joined with me on Sep 06 only. In this situation, what is my status (Married Filing Jointly ?) to File tax and the best procedures to claim them as a dependents?

Thanks
Demi

[AtlantaTaxExpert]

Demi:

1) If you have the final payslip, you could use that in lieu of the W-2. Or you can ask the IRS to send you your tax script. If a W-2 has been filed as required by law, the information for the missing W-2 will be in the tax script. Any competent tax professional could then reproduce the W-2 on his tax software.

2) You meet the Substantial Presence Test, your wife does not. However, if you file jointly, she does not have to meet the Substantial Presence Test, because she can file as a non-resident alien spouse of a resident alien (you).

Your wife will have to complete and sign a W-7 for her to get an ITIN. It should be submitted with your tax return.

Claiming the child may be a problem. To claim the child as a dependent requires that the child live with you for at least six months out of the year. The child has not lived with you, but presumably lived with your wife for the entire year.

I recommend to claim the child and apply for an ITIN for him/her as well. If the dependency is invalid, the IRS will let you know. The worst that can happen is that they will deny the dependency and adjust the return accordingly. You will definitely be able to claim in 2007.