Can I use the status of HOH when a repatriate is coming home with a child and a foreign spouse? We don't have any SS to file MFJ or MFS?

[Terry53029]

here is a link to interactive tax assistant to assist you in making that determination:

 https://www.irs.gov/help/ita/what-is-my-filing-status

[BobKamman]

Does the spouse qualify as a nonresident alien?

[sjrcpa]

Spouse can get an ITIN if a number is needed.

[celine389]

This link does not help.  I am speaking of a nonqualified resident alien who just came into the country the last part of 2020 without any ID number.  Husband is currently seeking for a resident alien status for her .

I also read somewhere if we file joint, she has to be in the states for 12 months.  

[celine389]

yes, nonqualified resident alien.  

[celine389]

If she has to be here for 12 months to file joint, the ITIN will just get the return through electronically.

Currently to obtain the ITIN will take additional time as the immigration lawyer wants his return to be filed by the 20th.

Somewhere on the IRS website regarding foreign spouses, I read in cases with foreign spouse coming in without any status of residency, we can file joint but she has to file her worldwide income on the return or husband can file HOH.  I forgot to document this answer and so I am throwing this question to Lacerte community.  I will need to look for what I found again and ascertain myself that HOH is ok.

[BobKamman]

IRS Pub 519 is a good place to start your education.  However, there is no such thing as a "nonqualified resident alien."  She may very well have become a resident alien when she entered the country -- it depends on all the facts and circumstances.  And if the immigration lawyer is concerned about having a tax return that shows her marital status and income, it's not going to help if they provide one that shows the husband is unmarried.

Head of household. You cannot file as head
of household if you are a nonresident alien at
any time during the tax year. However, if you
are married, your spouse can qualify as a head
of household if:
• Your spouse is a resident alien or U.S. citizen for the entire tax year,
• You do not choose to be treated as a resident alien, and
• Your spouse meets the other requirements for this filing status,

I really don't understand this aversion to filing a paper return when special circumstances exist, like lack of ITIN (and why didn't they think of that 8 months ago?).  

[joshuabarksatlcs]

Why didn't they think of that 8 months ago? 

Apparently, they're under the guidance of legal counsel.  Lawyers' work schedules are generally "deadline driven".  How do I know this?  Because I've done litigation support. 

I don't know if this is part of Pub 519.  Or whether you were actually thinking about this.  For what it's worth, here it is..  

https://www.irs.gov/individuals/international-taxpayers/us-citizens-and-resident-aliens-abroad-head-...

RE: MFJ, the general rule is that, to file a joint return, neither spouse can be a NRA during the year.  However, if qualified, the joint filers may make the election and file jointly. 

Bear in mind that one criterion to determine the residency status for tax purposes is the substantial presence test.  A non-green card holder could still be a resident - even for the full year - under certain circumstances. 

I tend to think, by "nonqualified resident alien", you meant "nonresident alien" .

[celine389]

The spouse, the wife is the nonresident alien.  I believe she came in with a tourist visa.  Husband is citizen for many years.  The immigration lawyer is trying to obtain her alien residency status, that is to obtain the green card.  The spouse came into the country late 2020.  Taxpayer husband needs to file his 1040.  My question is can I just file HOH for the husband with the child as dependent. I have trouble here with California.  For HOH, the husband cannot be married.   We don't mind filing joint without the SS# or ITIN.  We will just put foreign and then paper file.  Somewhere along the way, I have read the nonresident alien should also be in the US for one year before they can file joint.  

Celine

[joshuabarksatlcs]

REGARDING I  My question is can I just file HOH for the husband with the child as dependent. 

==========================================

Asked and answered.  YES.

REGARDING:  I have trouble here with California.  For HOH, the husband cannot be married. 

============================================

Your second sentence is not exactly correct. 

Section 18521 CA Rev & Tax Code:

(a)(1) Except as otherwise provided in this section, an individual shall use the same filing status that he or she used on his or her federal income tax return filed for the same taxable year.

The federal qualification for HOH of citizen/resident with a NRA spouse (you may need to find the city for this for your reference)  is NOT an exception in this CA code section.  Thus, the federal law defining HOH is incorporated in CA law by reference.  See Sec 17024.5.

When federal law has been incorporated into CA law, the corresponding federal regs are also applicable for CA .  Section 17024.5(h)

Or, more direct, CA Pub 1540:

Nonresident Alien Spouse/RDP
If your spouse/RDP was a nonresident alien at any time during the year, you are unmarried or not a registered domestic partner for head of household purposes. If you are unmarried and not a registered domestic partner, you have a wider range of relatives who can qualify you for head of household filing status.

(NOTE: The above was from 2017 Pub 1540 from a client file.  You need to get the updated Pub 1540 if it was revised.) 

REGARDING:  We don't mind filing joint without the SS# or ITIN.  We will just put foreign and then paper file.  Somewhere along the way, I have read the nonresident alien should also be in the US for one year before they can file joint.  

==================================================

IRC 7701(b)4 allows a US taxpayer with a NRA spouse to elect to file a joint return. See Reg 7701 b 4 c 3 for the election.

Without making the election, the 12-month requirement you mentioned would apply.

So, take your pick:

Either

A.  Make the election and file a Joint return.  (NOTE: one of the requirements is that the NRA had to be present in the US for a 31-day consecutive period in the election year. )  

OR 

B.  Husband Files HOH.  

Whet