My clients spouse is a resident alien with no Social, no ITIN and no income for the year - What status can I file? They also have a new child. Can my client file as HOH?

[Bill0]

I'm not sure how to file this client - it seems like a SS number or TIN is needed in any case - what are my options?

[itonewbie · Accepted solution]

That would depend on whether the spouse was an NRA at any point during the tax year.  If so, your client, for the purpose of HoH filing status, is considered unmarried and may file as HoH so long as the home which he/she maintained was the home of the new born at least for half the time since birth.

Otherwise, the default filing status is MFS.  Given the spouse was a resident alien at the end of the year and had no income, it would be more beneficial to elect joint filing unless there are other concerns such as joint and several liability.

ITIN or SSN will be required if your client is to file MFJ.  For other statuses, it's not required but the return will need to be filed on paper.

[itonewbie]

In order to file jointly, the OP must first determine the spouse's US tax status because different elections may be required.

US TIN is required of the spouse for MFJ.  It is not permissible to leave that blank or indicate "Not Applicable" (btw, there's no option for "None").  US TIN is also required if spousal exemption is to be claimed (although it's not relevant under TCJA).

Not as relevant in this case but it would not be advisable to elect joint filing with NRA spouse without first finding out whether certain joint election had previously been made by either spouse, understanding the alien spouse's income and net worth, now and in the foreseeable future, and discussing with the client the pros and cons, including any potential implications downstream.  Mistake could prove very costly.

[Munti73]

1. The OP clearly stated that the spouse is a resident alien.

2. I am not aware of any SSN requirement to file MFJ.

3. You can put any character in the spouse SSN field, and Lacerte will print it.

3. Clicking 'Suppress spouse exemption on MFJ return' may be necessary for state return.

4. In the past several years, I prepared a handful of tax returns without spouse's SSN. I used NRA (non-resident alien) or None. None of them was returned, rejected, or adjusted by the taxing authorities.

[itonewbie]

1. Dual status resident aliens at year end are not entitle to file jointly without a valid §6013(h) election.  Based on the little information the OP provided, we don't know whether the spouse was an NRA at the beginning of the year, hence, my question to the OP.
2. Yes, you will require either an SSN or ITIN.
3. I was referring to the standard dropdown options in Lacerte.
4. I was referring to federal return, not state, because, very often, that determines the default filing position for state.
5. A lot of returns are not filed correctly and we are here to advocate what should be done by the book to keep clients out of trouble.

[Munti73]

Can you give the citation for SSN or ITIN requirement to file MFJ?  I understand that SSN is needed to claim EIC, dependent care credit, etc.

I am quite certain that in an event of an audit, I can defend filing MFJ without spouse SSN.  I have been practicing for more than 25 years.  During these times, very few of my clients have been audited by the IRS and most of them ended up with no change or minor adjustment.  I did not have any field audit in the past six years.

[TaxMonkey]

Your citation is IRC 6109 and Treas reg 301.6109

https://www.law.cornell.edu/uscode/text/26/6109

https://www.law.cornell.edu/cfr/text/26/301.6109-1

[itonewbie]

Thanks, @TaxMonkey!

@Munti73 The Regs refer to requirements outlined in the respective forms and instructions.  The instructions for W-7 clearly lay out when NRA and RA spouses would require an ITIN if they don't qualify for an SSN (which is as explained in the responses above).

[Bill0]

Thank you everybody for taking time during the busiest part of tax season to answer my question - it is very much appreciated.

[itonewbie]

NP, @Bill0!

[Munti73]

Absent of concerns such as joint and several liability, et., I will file MFJ and paper-file it.

1. In the spouse SSN field, put None.

2a. In Screen 3 Miscellaneous Info, on the left most column, under Section, click Miscellaneous.

2b. Scroll down to find Suppress spouse exemption on MFJ return. Click it.

Again, you must paper-file the return because you cannot e-file it without spouse's valid SSN.