Filling Jointly with Nonresident spouse
Hi, I am a US citizen married to a nonresident spouse. We filled it out jointly through freetaxusa and were unaware that we needed to include the declaration for her to be treated as a US resident. Do we send the declaration to the IRS or do we need to file 1040x with the declaration even though there are no changes to the number?
Answers
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If you are a U.S. citizen who filed jointly with a nonresident spouse using FreeTaxUSA but did not include the required election to treat your spouse as a U.S. resident for tax purposes under IRC §6013(g), you must amend your return. Even if there are no changes to the numbers on your return, the IRS requires the election statement to process the return as "Married Filing Jointly."
What you need to do:
- File Form 1040X (Amended U.S. Individual Income Tax Return).
- Attach a signed statement making the IRC §6013(g) election.
- Mail it to the IRS if it cannot be e-filed.
- If your spouse does not have an SSN or ITIN, also attach Form W-7 (ITIN application).
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Example election statement to attach:“We elect to treat [Spouse’s Full Name], a nonresident alien, as a U.S. resident for tax purposes in accordance with IRC §6013(g). We are married and meet all other requirements to make this election.”
Include both names, SSNs or ITINs (or note “applied for”), and both spouses must sign.
—-How to amend your return on FreeTaxUSA:
Log in at https://www.freetaxusa.com/amended
Go to the “Account” menu and choose “Amend Tax Return.”
Start a new Form 1040X and follow the steps.
If needed, include a completed Form W-7 for your spouse.
IRS regulation on making the election:
https://www.law.cornell.edu/cfr/text/26/1.6013-6IRS guidance on joint returns with nonresident spouses:
https://www.irs.gov/individuals/international-taxpayers/nonresident-spouseIRS Form 1040X instructions:
https://www.irs.gov/instructions/i1040xForm W-7 and instructions (if needed):
https://www.irs.gov/forms-pubs/about-form-w-75
