Taxpayer married to resident alien whom does not have an SSN for submission of joint tax return, is it best to apply for ITIN via submission of W-7 form with tax filing?

[Richard1024]

I have a client whose spouse is a permanent US resident (from the islands originally) and was recently issued a permanent resident ID & card.  They were married in 2017 but due to not having any identification information and the client still working through the residency status, we went ahead and filed the return in 2017 as single.  Now to the 2018 return, the client spouse was recently issued the permanent resident card stating residency since February 2019.  As they were considered legally married in 2017 and with the process now complete in terms of getting the residency identifier.  I'm thinking the client can amend the prior year return to claim the married filing jointly status as well as file the 2018 return as jointly.

They are working on obtaining SSN number, however as this may take some time.  Would there be a right way to handle this process or the steps in the process.  My research indicated applying for an ITIN (form W7 - attach to tax return).  The application states not to use if you  have or are eligible to receive an SSN.

Also would it be best to amend the prior year 2017 return (to married status) prior to filing the 2018 return?

[itonewbie · Accepted solution]

The 2017 return should never have been filed as single since your client was married in 2017.  It has long been established that martial status under §7703 is determined based on laws of the state in which the marriage took place.  Immigration status, legal or illegal, and whether the spouse has a US TIN is irrelevant.  The 2017 return will need to be amended regardless; luckily, the statue of limitation for electing to file jointly has not yet run out.

In order to file jointly though, you need to determine what the spouse's US tax status was, based on SPT, before receiving the green card and stepping into the US for the first time (if the spouse was not already in the US waiting for adjustment of status) as §6013(g) or (h) may be necessary.

Since the spouse is now eligible for SSN, she will not qualify for ITIN.  Your client's spouse must visit the SSA to apply for one before filing the 2018 return.

[Richard1024]

Thank you for your feedback to my dilemma, greatly appreciated.  I agree with amending the prior years return.  My client is in the process of obtaining SSN.  Depending on the timing & process, it may be best to obtain the SSN, amend the prior year & then file the 2018

[itonewbie]

Glad to be of help.