Treating a non resident spouse as a resident for tax purposes

Treating a non resident spouse as a resident for tax purposes is allowed provided the other spouse is a US citizen or a resident alien. But make sure you understand the rules once you make this election. In case you do not want to choose this option, read here.

Election to file a joint return

If at the end of any tax year, one spouse is a U.S citizen or a resident alien and the other spouse is a non resident alien, you can choose to treat the non resident as a resident alien. This includes situations in which one of you is a nonresident alien at the beginning of the tax year, but a resident alien at the end of the year, and the other is a nonresident alien at the end of the year.

If you make this choice, the following rules apply:

1. You and your spouse are treated, for federal income tax purposes, as residents for all tax years that the choice is in effect.  You and your spouse are treated as residents for your entire tax year for the purpose of your federal individual income tax return, and for the purpose of withholding federal income tax from your wages. However, you may still be treated as a nonresident alien for the purpose of withholding Social Security and Medicare tax. Refer toAliens Employed in the U.S. – Social Security Taxes
2. You must file a joint income tax return for the year you make the choice (but you and your spouse can file joint or separate returns in later years), and
3. Each spouse must report his or her entire worldwide income on the joint income tax return.
4. Generally, neither you nor your spouse can claim tax treaty benefits as a resident of a foreign country for a tax year for which the choice is in effect. However, the exception to the saving clause of a particular tax treaty might allow a resident alien to claim a tax treaty benefit on certain specified income.

How to Make the Choice

Attach a statement, signed by both spouses, to your joint return for the first tax year for which the choice applies. It should contain the following information:

1. A declaration that one spouse was a nonresident alien and the other spouse a U.S. citizen or resident alien on the last day of your tax year, and that you choose to be treated as U.S. residents for the entire tax year
2. The name, address, and identification number of each spouse. (If one spouse died, include the name and address of the person making the choice for the deceased spouse.)

Amended Return

Amended Return

You generally make this choice when you file your joint return. However, you can also make the choice by filing a joint amended return on Form 1040X, Amended U.S. Individual Income Tax Returnwithin 3 years from the date you filed your original U.S. income tax return or 2 years from the date you paid your income tax for that year, whichever is later. If you make the choice with an amended return, you and your spouse must also amend any returns that you may have filed after the year for which you made the choice.

Suspending the Choice

The choice to be treated as a resident alien does not apply to any later tax year if neither of you is a US citizen or resident alien at any time during the later tax year.

Ending the Choice

Once made, the choice to be treated as a resident applies to all later years unless suspended (as explained above) or ended in one of the ways shown below. If the choice is ended for any of the reasons listed below, neither spouse can make a choice in any later tax year.

• Revocation by either spouse
• Death of either spouse
• Legal Separation
• Inadequate records

Social Security Number

If your spouse is a nonresident alien and you file a joint or separate return, your spouse must have either a Social Security Number (SSN) or an Individual Taxpayer Identification Number (ITIN).