[tonow]

Hello experts,

Husband is on H1B and wife has been working on OPT for last 8 months. We have been filing taxes jointly till last year when she had no income. Wife passes substantial presence test.

Wife's employer hasn't deducted FICA (Social security, medicare) taxes.

1. Can we file taxes jointly. If we can, do we need to pay back FICA taxes, if so how do we do it.

2. If not, can we file resident tax return for husband and non-resident tax return for wife. If that is the case, how long can we file separate tax returns before we can start filing jointly.

Thanks for providing this useful service.

[tonow]

Small correction to the question: Wife has been on F1 this whole year, so I guess she doesn't meet Substantial Presence test.

[AtlantaTaxExpert]

1) You CAN file jointly and your wife be treated as a resident alien for all of 2011 WITHOUT paying the FICA taxes; this is clearly delineate in the second paragraph of the link below:

http://www.irs.gov/businesses/small/international/article/0, id=96370,00.html

2) Not applicable, since you CAN (and SHOULD) file jointly.

If you need professional help filing, email me at [email protected].

[tonow]

Thank you AtlantaTaxExpert. I am confused as you suggested to file separately on another question with similar situation. Can you please explain.

https://www.askmehelpdesk.com/advice/t-179194.html
https://www.askmehelpdesk.com/taxes/husband-f1-wife-opt-h1b-married-filing-jointly-329191.html

[AtlantaTaxExpert]

The first posting was OVER four years ago; at that time, I thought that someone who filed jointly DID obligate themselves to pay FICA taxes, but I later learned, after further research, that it did not.


However, sometimes I do advise married clients to file separately if the FICA taxes are mistakenly withheld.

In such cases, the F-1 spouse MUST file a tax return before filing Form 843 to get her FICA taxes back, and the return MUST be a non-resident alien return (Form 1040NR). If she does not file the tax return, the IRS puts the FICA refund on hold until the return is filed, and if the return filed is a resident return (Form 1040), the IRS then rejects the FICA refund request, even though their own website specifically states that she is NOT liable for the FICA taxes.

I know that makes no sense, but that IS the process at the IRS.

[Bhuvanlagaan]

Hello AtlantaTaxExpert, the IRS link you are citing is under "business" section. Does it apply to H1,F1 tax payers? I am in same boat ths year, so want to confirm if I can really file jontly. I was on H1 and wife on F1 for entire 2011. Your feedback is much appreciated.

[AtlantaTaxExpert]

Yes, you CAN file jointly and yes, your wife will WILL be exempt from FICA taxes.

[lalji]

Atlanta tax expert,
Just so I understand correctly if spouse is on OPT(F1) and husband is on H1B can they file taxes together using 1040 resident tax return?

[AtlantaTaxExpert]

Yes, that is correct.

The wife just has to sign a statement that she CHOOSES to be treated as a resident for all of 2012.

[lalji]

What if the husband and wife chooses to file taxes electronically using 1040 tax return

[AtlantaTaxExpert]

Then the SIGNED statement can be mailed using Form 8453 as a transmittal form.

[lalji]

And if we file paper return can wife write a separate letter indicating she chooses to be considered resident for tax purposes and send it along with federal return?

[AtlantaTaxExpert]

If you file a paper return, just sign the statement and staple it to the tax return.

[F1taxfile2012]

Hi AtlantaTaxExpert,

We are in the same situation as above. H1b husband and F1 spouse, who was on H4 until Dec 1 2012. Based on your suggestion, we are going to file Married File Jointly for 2012 electronically. However when I saw Form 8453 on IRS website, http://www.irs.gov/pub/irs-pdf/f8453.pdf says:

"FILE THIS FORM ONLY IF YOU ARE ATTACHING ONE OR MORE
OF THE FOLLOWING FORMS OR SUPPORTING DOCUMENTS. Check the applicable box(es) to identify the attachments."

The option for a Signed statement to be chosen as Resident alien isn't listed under it. What should I do to submit that statement? Is there an alternate form?

Thanks.

[AtlantaTaxExpert]

The Residency Choice Statement is considered to be a "SUPPORTING DOCUMENT".

I have spoken at length with the IRS about this, and they WANT you to efile if at all possible.

[F1taxfile2012]

Thanks so much AtlantaTaxExpert.

My wife got her SSN last month. Can we first efile (say, today), then (tomorrow) send the form 8453 + Supporting letter for Residency Choice Statement + Supporting letter to void ITIN and use new SSN (as per http://www.irs.gov/Individuals/Additional-ITIN-Information) all together?

[AtlantaTaxExpert]

Yes, that should work if the ITIN has not yet been issued.

[F1taxfile2012]

Sorry for the confusion. But the ITIN has been issued 3 years ago. We have been filing taxes on her ITIN (and my ssn) for last 3 years. But last month she got the SSN. Does that still work?

[AtlantaTaxExpert]

If that has happened, the IRS has already been informed about the SSN and has already canceled her ITIN.

Efile.

[F1taxfile2012]

Thanks AtlantaTaxExpert.

Actually, when I tried to eFile, the system didn't recognize her new SSN and so I had to call the IRS, who advised me to use the ITIN for eFile for now because their system seems to have not updated yet. I did file with ITIN and sent the Residency Choice Statement as a SUPPORTING DOCUMENT along with another letter informing about the new SSN and attaching a copy too.

Now when I try to file Maryland State taxes, should I do the same thing or just try and file under the new SSN?