Thursday, May 13, 2010

What should my filing status be for taxes if i am married to an illegal immigrant who can't file?

I am married to an illegal, and what to file my taxes. Should I file Head of Household or single? I have 2 children that are my dependents. Thanks!!What should my filing status be for taxes if i am married to an illegal immigrant who can't file?
I had this situation last year. What I ended up doing was declaring myself Married, Filing Separately.What should my filing status be for taxes if i am married to an illegal immigrant who can't file?
First, you must determine if your spouse is a resident alien for tax purposes or a non-resident. The fact he is not documented (the IRS doesn't use the word illegal) does not automatically mean he is a non-resident alien. If he lives in the US and particularly if he lives with you, he's probably a resident alien under the 183 day test.





Second you have to decide if you *want* to file together.





You can only file HOH if a) does not live with you (resident or not) at all from 7/1 to 12/31 or b) he's a non-resident and does live with you, but the HOH in this case is only for the standard exemption amount, it does NOT entitle you to EIC.





Alternately, since *you* are a US citizen, the TWO of you can file Married Filing Jointly. If he's a non-resident, you simply elect to treat him as a resident and file the return. Since he doesn't have an SSN, again, you are NOT eligible for EIC, but you would get a) the MFJ standard deduction, b) his $3400 exemption and c) better tax rates. This would require that you attach a W-7 form to the tax return to get an EIN. If he has somehow managed to work, you include his worldwide income.





Or, if he has ZERO US source income, you can file MFS and claim his exemption (this is when he doesn't want to file with you or has income from another country). Add the W-7 and file.





Or, if all else fails, you can file MFS, attach a note saying you can't do the W-7 form at this time and send the return to the service center.





Let me stress this again, if he lives with you, you cannot claim EIC. If he lives with you say 2 months out of the year, you may be able to file HOH, but again no EIC. If he lived with you most or all of the year, he's resident and you MUST file MFJ or MFS...and again no EIC.

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