can he file as married but single?

[jolida72]

What is the name of your state? ny. does my husband have to put me on his taxes if i don't work? the reason i ask is i'm still waiting for my TIN and we were wondering if he could just file married but filing single. thank you

[abezon]

He can file as MFS. However, MFS is the highest tax bracket and he may actually end up owing taxes if he files MFS. If he doesn't owe using the MFS status, he can file now & get a small refund, then amend his federal & state returns when your ITIN arrives and get a much larger refund.

Alternatively, he can file an extension and file his return when your ITIN arrives. Have you called the number listed in the W-7 instructions to find out why it's taking more than 6 weeks? Also, did you apply for ITINs for any children or dependent parents?

Is this a permanent move or a temporary job? Will he be filing as a resident or non-resident or dual status? Do you qualify each other to file as full-year residents? The years you enter & leave the US can get very complicated from a tax standpoint. You might want to seek help from HR Block. Make sure you find one that deals with *lots* of NR/dual status returns. It will most likely be near the Canadian border.

[jolida72]

Actually I only applied for my TIN about 2 weeks ago but we want to use the tax refund we'll get (we have a 7 year old daughter that he always claims) to get my immigration papers filed. He is American by birth and we've never left the country. I only filed for the TIN because I thought he had to claim me and my immigration status does not allow me to get a ss# yet. Our daughter was born here so she does not need a TIN as she has her own ss#.

[abezon]

OK, that's a very different scenario than I had thought. How long have you been in the US? How long have you been married? If you married recently, he's probably been filing head of household and switching to MFS will cost him a lot of money. If you married before 2002, he should not have filed HH for 2001 and will need to amend his tax returns for the earlier years.

Since you applied 2 weeks ago, you should have your ITIN before the end of Jan. Call the 1-800 number once 4 weeks have passed just to make sure they got all the right paperwork/IDs.

[jolida72]

we were married in april of '02 and he's always filed HH. I've been in the states for 13 yrs and we've lived together for the last 9 but he was still legally married to his ex and we had difficulties finding her ss# so he could get his divorce. hes always claimed our daughter as his dependant and we were hoping he could claim me this year as he is the one supporting me.

[abezon]

He can't claim you as a dependent, since a spouse cannot be a dependent. He can file jointly with you, which acts the same way.

Once you get your ITIN, he can amend the last 3 years' tax returns and claim you as a dependent. This will save him $500-800 for each year. See a professional tax preparer about filing a 1040X for the last 3 years (1999-2001). The 1040X is a pain to fill out & you might as well just pay someone else ot do it.

[jolida72]

ok now if he can't claim me as a dependant and we were only married this year how can he change his taxes for the last 3 years? I know this would be good for immigration reasons also as it proves that we didn't marry for the purpose of green card fraud.

[abezon]

Because you are now married, you cannot be claimed as a dependent on his 2002 return. Prior to your marriage, you can be claimed as a dependent if you meet all 5 dependency tests.
1. You were a resident of the US, Canada, or Mexico, or a US citizen. (You're a US resident for tax purposes if you were in the US for more than 1/2 the year. The test is actually more complicated, but since you've lived here the whole time, you can just say yes & move on.)
2. He provided more than 1/2 your support.
3. Your gross income was less than the personal exemption amount ($2500 - $2900).
4. You lived in his household the entire year.
5. You are not filing a joint return with anyone else.

Since you had no income & lived with him for 7 years, you'll pass all 5 tests. He can amend 1999-2001 and claim you as a dependent for those years.