For US tax purposes, a nonresident alien (NRA) is someone who is neither a US citizen nor a US tax resident. A non-citizen becomes a US tax resident, called a resident alien, by holding a green card or by spending enough days in the United States. If you are the US spouse, meaning a US citizen or resident alien (a “US person”), and your spouse is a nonresident alien on the last day of the tax year, you cannot file as single, because you are married. The law also bars an ordinary joint return while either spouse is a nonresident alien. Three federal filing statuses remain:
- Married filing separately (MFS), which applies by default.
- Head of household (HOH), if you have a qualifying person other than your spouse, such as a child, and pay more than half the cost of keeping up the home.
- Married filing jointly (MFJ), but only if both spouses sign an election under Internal Revenue Code (IRC) section 6013(g) or 6013(h) to treat the nonresident spouse as a US resident.
The election is the choice with lasting consequences. It brings the nonresident spouse's worldwide income onto the US return and brings their foreign financial assets into US asset reporting. It also stops either spouse from claiming income tax treaty benefits as a resident of another country. A section 6013(g) election then carries on into later years until it ends.
How to tell whether your spouse is a nonresident alien
“Nonresident alien” is a US tax classification under IRC section 7701(b), not an immigration label. A non-US-citizen spouse is a nonresident alien for a tax year unless, for that year, they meet either the green card test or the substantial presence test. The classification is tested separately for each tax year, and the answer can change part-way through a year. The spouse is then a nonresident for part of the year and a resident for the rest, which is called dual-status treatment. Section 6013(h), covered later, deals with that situation.
The classification matters because it sets the scope of US tax. A nonresident alien is taxed only on US-source income and on income effectively connected with a US trade or business. A resident alien is taxed on worldwide income, in the same way as a US citizen. The same classification also decides the filing statuses open to you as the US spouse, because a joint return is barred for any year in which either spouse is a nonresident alien unless one of the elections described below is made.
The green card test
A spouse meets the green card test if they are a lawful permanent resident of the United States at any time during the calendar year. Holding a green card makes the spouse a resident alien for tax purposes even where they live abroad full time, and that status continues until the green card is formally abandoned or is administratively or judicially determined to have been abandoned or revoked. The practical consequence is that a green-card spouse is already a US tax resident: no section 6013(g) election is needed, and married filing jointly is available directly.
The substantial presence test
A spouse meets the substantial presence test if they are physically present in the United States for at least 31 days in the current year and for 183 days measured over three years on a weighted count. The weighting counts:
- every day of presence in the current year;
- one-third of the days of presence in the first preceding year; and
- one-sixth of the days of presence in the second preceding year.
Meeting the test makes the spouse a resident alien taxed on worldwide income for that year. Commuting, business travel and part-year stays in the United States are the usual reason a spouse unexpectedly stops being a nonresident alien. Two exceptions can change this result. Days do not count for certain exempt individuals, such as some students and teachers on specified visas. A spouse who spends fewer than 183 days in the United States in the current year can also remain a nonresident under the closer connection exception, if their tax home and closer personal ties are in another country.
Why a visa, a foreign marriage or living abroad does not change the position
Three facts are often thought to change the position. None does.
A visa does not decide tax status. Immigration status is decided separately from tax residency. A spouse holding a tourist, student or work visa may still be a nonresident alien, and a spouse with no US visa at all may still become a resident alien by day count under the substantial presence test.
A marriage celebrated abroad still counts. A marriage is recognized for federal tax purposes if it is valid in the place where it was celebrated, so a couple married overseas is married for filing-status purposes. The place-of-celebration rule is stated in Revenue Ruling 2013-17.
Living abroad does not end your own filing duty. US citizens and resident aliens are taxed on worldwide income wherever they live, so moving abroad does not remove the US spouse's obligation to file.
Why married filing separately is the default, and why you cannot file as single
A US person married to a nonresident alien on the last day of the tax year files as married filing separately by default, unless they make a section 6013(g) or 6013(h) election or qualify as head of household. Two provisions produce this result together: IRC section 6013(a)(1) prohibits a joint return for any year in which either spouse was a nonresident alien at any time during the year, and IRC section 7703(a)(1) fixes marital status as at the last day of the tax year. Married on 31 December, with a joint return barred, the remaining default is married filing separately.
Couples in this position often live apart, sometimes in different countries, and assume that makes them single. It does not. Without a decree of divorce or of separate maintenance, a married taxpayer remains married under IRC section 7703(a)(2), and a spouse's physical absence abroad is irrelevant to that status.
Under married filing separately, you report only your own worldwide income. The nonresident spouse's foreign income stays outside the US return entirely, because no election has brought the spouse into the US tax system.
What you enter on Form 1040 when your spouse has no SSN or ITIN
On a married-filing-separately return you still have to identify your nonresident alien spouse, even if they have no Social Security number (SSN) or Individual Taxpayer Identification Number (ITIN), the two US tax numbers issued to individuals. Do it like this:
- Tick the “married filing separately” box.
- Enter your spouse’s full name in the entry space just below the filing-status boxes.
- Enter their SSN or ITIN in the space for the spouse’s number if they have one.
- If they have no SSN or ITIN and are not required to have one (generally because they file no US return of their own and you are not filing jointly), enter “NRA” in the entry space below the filing-status boxes, not in the number box.
What married filing separately costs you
Married filing separately restricts or reduces a number of items. The table states each item and the effect. The dollar limits and phase-out ranges behind them are set annually, so the current year's figures govern.
| Item | Effect under married filing separately |
|---|---|
| Earned income credit | Generally unavailable. A limited exception applies to certain separated spouses, and valid SSNs are required in all cases |
| Child and dependent care credit | Generally not allowed to a married taxpayer filing separately |
| American Opportunity and Lifetime Learning credits | Not allowed to a married taxpayer filing separately |
| Deductible traditional IRA contribution | Reduced phase-out range where the taxpayer lived with the spouse at any time during the year |
| Capital loss deduction against ordinary income | Dollar limit halved compared with a joint return |
| Standard deduction | The lower married-filing-separately amount applies |
When you can file as head of household while still married
Head of household uses its own test of marriage. Under IRC section 2(b)(2)(B), a taxpayer whose spouse was a nonresident alien at any time during the year is treated as not married for this status only, even though they remain married for every other purpose. That rule opens head of household to the US spouse, but it is only the first of three conditions.
All three conditions must be met:
- The taxpayer is treated as not married, because the spouse was a nonresident alien at any time in the year.
- The taxpayer has a qualifying person who is not the spouse.
- The taxpayer furnished more than half the cost of maintaining the household for the year.
A further limitation applies to your own status. A taxpayer who was themselves a nonresident alien at any time during the year, typically in the year they first move to the United States, cannot be a head of household.
The qualifying person test, and why your spouse never qualifies
The nonresident alien spouse is never the qualifying person for head of household. The qualifying person must be someone else: a qualifying child who lived with the taxpayer for more than half the year, or a dependent relative whom the taxpayer may claim.
A qualifying person's ID number matters for some benefits, but not for the status itself. Head of household does not require the qualifying person to hold an SSN. The child tax credit, which you may also claim for the same child, does require the child to hold an SSN valid for employment. The credit for other dependents can be claimed with an ITIN.
Keeping up a home: the more-than-half cost test
The taxpayer must have furnished more than half the cost of maintaining the household that was the qualifying person's main home for more than half the year. Costs that count include rent, mortgage interest, property taxes, insurance on the home, repairs, utilities and food eaten in the home. Costs that do not count include clothing, education, medical care, vacations, life insurance and transportation.
Amounts received from others are not treated as furnished by the taxpayer. That includes money supplied by the nonresident alien spouse, which does not count toward the taxpayer's share.
Why a nonresident spouse makes head of household easier than living apart does
The route to head of household depends on whether the spouse is a US person or a nonresident alien. If your spouse is a US person, the only route is the “considered unmarried” rule for spouses who live apart, which requires, among other conditions, that your spouse did not live in your home during the last six months of the tax year. The nonresident-alien rule above works differently. It treats you as not married outright and has no separate-residence requirement. A US spouse with a nonresident spouse and a qualifying child can therefore file as head of household while sharing a home with the nonresident spouse, whether the family lives in the United States or abroad.
Filing jointly: the section 6013(g) and 6013(h) elections
A joint return with a nonresident alien spouse is never automatic. It requires an affirmative election, signed by both spouses, and the provision that applies depends on whether the spouse is still a nonresident alien at the end of the year or has become a US resident by then. Both elections make the electing spouse a US resident for the entire tax year, both require a joint return for the election year, and both require the spouse to hold an SSN or ITIN. The table compares the two.
| Election | Spouse's position in the tax year | Effect | Duration |
|---|---|---|---|
| Section 6013(g) | A nonresident alien at the close of the year, married to a US citizen or resident | Spouse treated as a US resident for the entire year; joint return permitted | Continues for every later year until terminated |
| Section 6013(h) | A nonresident alien at the start of the year but a US citizen or resident at the close (the arrival-year, dual-status case) | Both spouses treated as US residents for the entire year; joint return permitted | Applies to that year |
Section 6013(g): the ongoing election
The section 6013(g) election is available where the spouses are married at the close of the tax year, one is a US citizen or resident and the other is a nonresident alien. It has two defining features:
- It treats the nonresident spouse as a US resident for the whole of the election year.
- It continues in force for every later year until it is terminated, so it is not a year-by-year choice.
A joint return is required for the first year the election applies. In later years, while the election remains in force, the couple may file separately, and each spouse still remains taxable on worldwide income.
Section 6013(h): the arrival-year election
The section 6013(h) election applies in narrower circumstances: at least one spouse was a nonresident alien at the beginning of the tax year, and at the close of the year both spouses are US citizens or residents. This arises when a spouse moves to the United States part-way through the year and would otherwise have to file a dual-status return. The election treats both spouses as US residents for the entire year, which permits a joint return and the full standard deduction that a dual-status filer cannot claim. In contrast to section 6013(g), a section 6013(h) election applies to the year of arrival rather than rolling forward indefinitely.
How to make the election: the signed statement and what it must contain
Making the election involves three steps:
- Make sure the nonresident spouse has an SSN or ITIN. If they have neither, prepare Form W-7, the ITIN application, to send with the return.
- File a joint Form 1040 or Form 1040-SR for the first election year.
- Attach a statement, signed by both spouses, that contains: a declaration that one spouse was a nonresident alien and the other a US citizen or resident alien at the close of the tax year; a declaration that both choose to be treated as US residents for the entire tax year; and the name, address and taxpayer identifying number of each spouse.
If one spouse has died, the statement must give the name and address of the executor or other person making the election for them. The election may also be made on an amended joint return for the first year it is to apply.
What changes once you elect to treat your spouse as a US resident
The election has a precisely defined scope. Under Treasury Regulation section 1.6013-6(a)(1), the electing spouse is treated as a US resident for the entire tax year for the income tax in chapter 1 of the Code and wage withholding in chapter 24, together with chapter 5 and the Code sections on who must file, joint returns, due dates and where to file. It does not make the spouse a US resident for all federal tax purposes.
Four consequences follow for the couple's return. Both spouses' worldwide income goes on the return. Relief from double taxation must be established separately for each spouse rather than assumed. Neither spouse may claim treaty benefits as a resident of another country while the election is in force. And joint filing creates joint and several liability for the tax, so each spouse is responsible for the full liability shown on the joint return.
Worldwide income on a joint return
From the first day of the election year, both spouses must report their entire worldwide income on the US return. That includes the nonresident spouse's foreign salary, business profits, interest, dividends, rents and capital gains, regardless of where earned and regardless of whether the income has already been taxed abroad. The obligation continues for every later year the election remains in force, whether the couple then files jointly or separately.
How each spouse separately qualifies for the foreign earned income exclusion or the foreign tax credit
The election brings the spouse's income onto the return, but it does not by itself confer any relief. Each spouse must qualify for the foreign earned income exclusion or the foreign tax credit in their own right.
For the foreign earned income exclusion under IRC section 911, a spouse needs a tax home (broadly, their main place of work) in a foreign country and must pass either the bona fide residence test, which requires genuine residence abroad for a full tax year, or the physical presence test, which requires 330 full days abroad in any 12-month period. The bona fide residence test is open to US citizens, and to US residents who are citizens or nationals of a country with which the United States has an income tax treaty containing a non-discrimination article. An electing spouse who is a citizen of a non-treaty country may therefore have to rely on the physical presence test instead.
For the foreign tax credit, foreign tax paid by either spouse on their own income may be creditable, subject to limits calculated separately for different categories of income. The exclusion is claimed on Form 2555 and the credit on Form 1116. The qualification tests and the mechanics of each form are subjects in their own right and are not worked through here.
The treaty bar: neither spouse can claim to be a treaty resident of another country
While the election is in effect, neither spouse may claim, under any income tax treaty, not to be a US resident for a year the election covers. In practice, the electing spouse loses treaty benefits that depend on being a resident of the other country, such as a reduced US tax rate on US-source income, and cannot file Form 8833 (the form used to disclose a treaty-based return position) to assert foreign residence for a covered year. Identify any treaty benefit the nonresident spouse currently relies on before electing, and weigh its loss as part of the decision.
Worked example: which filing status works for a nonresident alien spouse?
Consider a US citizen living and working in the United States with USD 70,000 of wages. Their spouse is a nonresident alien who lives abroad, has never lived in the United States, and has no SSN or ITIN. The spouse earns the equivalent of USD 12,000 in local wages. The couple has one child, who lives with the taxpayer all year and has an SSN. Single status is not available, because the taxpayer is married, so the choice is between married filing separately, head of household, and married filing jointly.
- Married filing separately. Only the taxpayer's USD 70,000 is reported. After a USD 15,750 standard deduction, taxable income is USD 54,250 and the income tax is approximately USD 6,849. Because the spouse has no SSN or ITIN, “NRA” goes in the entry space below the filing-status boxes, although some tax software cannot handle this entry, which can force a paper return.
- Head of household. The taxpayer is treated as not married for this purpose because the spouse is a nonresident alien. The taxpayer must still show that the child lived with them for more than half the year and that they paid more than half the cost of keeping up the home. With a USD 23,625 standard deduction, taxable income is USD 46,375 and the income tax is approximately USD 5,225. No spouse SSN or ITIN is needed.
- Married filing jointly. The section 6013(g) election treats the spouse as a US resident for the whole year. Both incomes are reported, giving USD 82,000. After a USD 31,500 standard deduction, taxable income is USD 50,500 and the income tax is approximately USD 5,583, before any foreign earned income exclusion or foreign tax credit on the spouse's wages. The spouse needs an ITIN.
Before any relief on the spouse's wages, head of household produces the lowest tax, about USD 1,624 below married filing separately and about USD 358 below the joint election. The joint figure changes if the spouse claims the foreign earned income exclusion, which a spouse who has never lived in the United States may qualify for under the physical presence test. Excluding the USD 12,000 of wages reduces the joint tax to approximately USD 4,383 (the tax on USD 50,500 less the tax on the excluded USD 12,000), about USD 842 below head of household. Against that saving sits the election's ongoing cost: the spouse's worldwide income stays within the US tax system in later years, and the treaty bar and Form 8938 reporting apply. The result depends entirely on the facts. A different income level, a higher foreign tax bill or the absence of a qualifying child would change the comparison, so each year's figures should be checked before a status is chosen.
What the election does and does not pull in: Form 8938, FBAR, net investment income tax and self-employment tax
The election reaches only the income tax rules listed earlier, so four related regimes need checking separately. Form 8938 is the annual statement of specified foreign financial assets filed with the income tax return. The FBAR (FinCEN Form 114) is a separate report of foreign bank and financial accounts filed with the Treasury's Financial Crimes Enforcement Network rather than the IRS. The net investment income tax is an additional tax on investment income above an income threshold, and self-employment tax is the Social Security and Medicare tax on self-employed earnings. The election brings the nonresident spouse into Form 8938 reporting. It does not by itself create an FBAR obligation for the spouse, apply the net investment income tax to them or make them liable to US self-employment tax. The US spouse's own obligations under each regime are unchanged by the election.
| Regime | Does the section 6013(g) or 6013(h) election bring the spouse in? |
|---|---|
| Form 8938 (specified foreign financial assets) | Yes. The electing spouse becomes a specified individual |
| FBAR (FinCEN Form 114) | No. Residency for FBAR is tested without regard to the election, under 31 CFR 1010.350 |
| Net investment income tax | No, not by itself. The tax sits in a chapter of the Code the election does not cover, and a separate election is available |
| Self-employment tax | No. The self-employment tax provisions are outside the chapters the election reaches |
Form 8938: the electing spouse becomes a specified individual
A nonresident alien for whom a section 6013(g) or 6013(h) election is in effect is a specified individual, the category of person who must file Form 8938 once their foreign financial assets exceed the applicable threshold. The spouse's specified foreign financial assets therefore come within Form 8938 reporting. Spouses filing a joint return file a single Form 8938 covering the assets of both. The reporting thresholds are higher for taxpayers whose tax home is abroad than for those living in the United States, and higher for joint filers than for separate filers.
FBAR: residency is tested without regard to the election
The FBAR rules sit in the Bank Secrecy Act, in Title 31 of the US Code, not in the Internal Revenue Code, so they use their own test of who is a United States person. That test includes resident aliens, but FinCEN stated in the preamble to the FBAR final rule, and the Internal Revenue Manual repeats, that residence is determined without regard to a section 6013(g) or 6013(h) election. Published guidance often gets this point wrong. The consequence is that a spouse who holds no green card, does not meet the substantial presence test and has not made the separate “first-year choice” to be treated as a resident under IRC section 7701(b)(4) does not acquire an FBAR obligation merely by electing to be treated as a US resident for income tax purposes.
Two qualifications belong alongside that rule. The spouse may still have to file an FBAR if they independently meet the definition of a United States person. And the US spouse's own FBAR obligation is unaffected, including for any accounts the spouses hold jointly.
Net investment income tax: a second, separate election
Nonresident aliens are outside the net investment income tax, and a section 6013(g) or 6013(h) election does not by itself extend the tax to the electing spouse, because the tax sits in chapter 2A of the Code, outside the chapters the election covers. Under Treasury Regulation section 1.1411-2(a)(2), absent a further election the spouses are treated as married filing separately for net investment income tax purposes, each computing their own net investment income and modified adjusted gross income against the separate-filer threshold.
The couple may make a second election to apply their section 6013(g) or 6013(h) election for chapter 2A purposes as well, which is made on Form 8960, the form used to calculate the tax. That combines both spouses' income and applies the joint-return threshold instead. The joint threshold is twice the separate-filer threshold, so the real cost of the second election is that the nonresident spouse's own investment income, which would otherwise sit outside the tax, is added to the combined total measured against it.
Self-employment tax: unaffected
The election does not make the nonresident spouse liable to US self-employment tax on foreign self-employment earnings, because the self-employment tax provisions are not among the chapters and sections the election reaches. The spouse's foreign business profits are reported as income on the joint return, but they are not carried to Schedule SE on the basis of the election alone. The US spouse's own self-employment tax position, including the effect of any totalization agreement (a social security agreement between the United States and another country), is a separate question.
How long the election lasts, how it is suspended and how it ends
A section 6013(g) election, once made, applies to the first year and to every later tax year until it is terminated. Once it has been terminated, the same two individuals can never make the election again. Because of that permanence, the first election is a long-term decision rather than an annual optimization.
Three different things can happen to the election in later years, with different effects. Suspension means the election is dormant for a year but survives. Termination means the election ends permanently. The re-election bar is the separate rule that follows a termination. They are addressed in that order below.
Suspension in a year when neither spouse is a US citizen or resident
The election is suspended for any tax year, after the election year, in which neither spouse is a US citizen or resident alien at any time during that year. Suspension is not termination: the election revives for a later year in which one of them is again a US citizen or resident. The common fact pattern is a US spouse who renounces US citizenship, or a green-card spouse who abandons the card, with both then living abroad as nonresidents.
Revocation, death, legal separation and termination by the IRS
The election terminates on any of four events. The table states how each happens and the first year for which the election no longer applies, as set by IRC section 6013(g)(4). That year differs from one event to another, so check the row that applies.
| Event | How it happens | First year the election no longer applies |
|---|---|---|
| Revocation | Either spouse files a signed statement of revocation giving the name, address and taxpayer identification number of each spouse, and, for a deceased spouse, the personal representative's details | The first year for which the statement is filed by the due date for that year's return |
| Death of either spouse | Automatic on death. If the surviving spouse can file as a qualifying surviving spouse, the election continues for as long as they can use that status | The first tax year following the year of death, or later for a qualifying surviving spouse |
| Legal separation | A decree of divorce or of separate maintenance takes effect | The year in which the decree takes effect |
| Termination by the IRS | The spouses fail to keep adequate records, grant access to them, or supply required information | The year the IRS specifies when it terminates the election |
The permanent bar on electing again
If the election is terminated, the individuals are ineligible to make an election under IRC section 6013(g) for any later tax year, under IRC section 6013(g)(6). The bar is narrower than it is often described. It bars a further election; it does not prevent the spouse from becoming a US resident in their own right, by obtaining a green card or meeting the substantial presence test, in which case a joint return becomes available without any election at all.
Getting an SSN or ITIN for your spouse, and what it means for e-filing
The identification required follows directly from the status chosen. A joint return requires the nonresident spouse to hold a valid SSN or ITIN. A married-filing-separately return does not, where the spouse does not have, and is not required to have, one.
An SSN is generally available only to US citizens and to people authorized to work in the United States, so most nonresident spouses apply instead for an ITIN on Form W-7. A first-time Form W-7 must be submitted together with the paper return and the supporting identity documentation, which removes the option to file electronically for that year. The two alternatives to mailing original identity documents are using a Certifying Acceptance Agent, an IRS-authorized agent who can verify the documents, or presenting them at an IRS Taxpayer Assistance Center. An existing ITIN expires if it is not used on a federal return for three consecutive tax years, and must be renewed before it can be used again.
SSN, ITIN or “NRA”: which one your return needs
Three cases arise, each with its own requirement. The table sets them out.
| Filing status | Spouse identification required | Filing method |
|---|---|---|
| Married filing jointly | SSN or ITIN (no "NRA" option) | Paper return in the first year if applying for an ITIN with the return; otherwise electronic |
| Married filing separately, spouse has no SSN/ITIN and is not required to have one | None; enter "NRA" | Electronic generally possible, subject to software |
| Married filing separately, spouse holds or must have an SSN/ITIN | The SSN or ITIN | Electronic generally possible |
On a joint return there is no “NRA” option, and an electronic joint return without a valid identifying number for the spouse will be rejected. An ITIN serves tax identification only; it confers no work authorization and no immigration status.
Timing: why a first-time ITIN changes your filing plan
A first-time Form W-7 must travel with a paper return, so in that year the return cannot be e-filed and the IRS will process it more slowly. Build the delay into your plan before committing to a joint return. A US person whose tax home is abroad gets an automatic two-month extension to file, and Form 4868, the application for an automatic extension of time to file, provides more time if needed. An extension to file is not an extension to pay. Interest runs from the original due date, so pay what you expect to owe by then even if the return goes in later.
Comparing the three statuses for your own household
The comparison is not a search for a single best status; it is a weighing exercise. The joint election is worth making only where the tax saved by the wider brackets and larger standard deduction exceeds the tax, compliance cost and lost treaty benefit created by adding the spouse's worldwide income. Because a section 6013(g) election is effectively permanent, the comparison has to be run across future years, not just the first.
Eight factors drive the comparison:
- The spouse's own income and where it arises.
- The spouse's foreign financial assets and the resulting Form 8938 exposure.
- Any treaty benefit the spouse currently claims as a resident of another country.
- Whether a qualifying person makes head of household available.
- Which credits the household would gain or lose, separating those that need an SSN from those available with an ITIN.
- Whether either spouse's foreign earned income exclusion or foreign tax credit already reduces US tax on their income to nil.
- The net investment income tax position, including the separate chapter 2A election.
- The expected shape of the next five to ten years.
| Attribute | Married filing separately | Head of household | Married filing jointly (by election) |
|---|---|---|---|
| Availability condition | Default where married to an NRA | Qualifying person (not the spouse) plus more-than-half-cost test | Section 6013(g) or 6013(h) election, jointly signed |
| Standard deduction | Lowest of the three | Higher than married filing separately | Highest of the three |
| Spouse's income on the return | No | No | Yes, worldwide |
| Spouse's assets on Form 8938 | No (no election) | No (no election) | Yes, the spouse is a specified individual |
| Treaty access | Spouse keeps any treaty benefits | Spouse keeps any treaty benefits | No treaty benefits as a resident of another country while the election is in force |
| Identification required | "NRA" if spouse has no SSN or ITIN | None from the spouse | Spouse needs an SSN or ITIN |
| Reversibility | Not applicable | Not applicable | Effectively permanent; re-election barred after termination |
Married filing separately usually fits where the spouse has meaningful foreign income or assets the couple would rather keep outside the US system, or relies on a treaty benefit worth preserving. Head of household usually fits where there is a qualifying child or dependent and the taxpayer meets the cost test, giving a better result than married filing separately without electing. Married filing jointly by election usually fits where the spouse has little foreign income or tax, no treaty benefit to lose, and the couple expects the wider brackets and larger standard deduction to outweigh the ongoing worldwide-income reporting across future years.
What to do next
Work through these steps in order.
- Fix the spouse's residency status for the tax year. Apply the green card and substantial presence tests, and record the day count if the spouse travels to the United States.
- Test head of household. Establish whether a qualifying person and the more-than-half-cost test make head of household available, and start keeping household cost records now if the position is close.
- If joint filing is under consideration, list what the election would bring in: the spouse's foreign income, their foreign financial accounts and assets, and any treaty benefit they currently claim as a resident of another country.
- Model the return both ways. Run the figures for the current year and for the expected position in later years, because a section 6013(g) election does not stop at one year.
- If the joint route is chosen and the spouse has no SSN, start Form W-7 early. Plan on a paper return for that year.
- Check whether an already-filed year should be amended, and whether the refund limitation period, generally three years from the date the return was filed, still permits it.
- If you live in, or have income from, a US state with an income tax, check the state position separately. A state may not follow the federal filing status.
- Confirm this year's filing deadline and whether the automatic extension for taxpayers abroad applies.
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