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Old 02-28-2013, 03:00 PM
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Join Date: Feb 2013
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H1 worker - new Resident Alien

Hi Tax Guru,

I came across this website & found it very informative. It is a very good initiative. I have a query, if you can please help.

I came to US in May 2012. Before that I was working in India. This is my first Port of Entry in USA in 2012. I was not in USA in year 2011, 2010 & 2009.

I am married but my wife is not in USA as she does not have a VISA. I cannot get her ITIN made as her passport has expired.

In November, I passed the substantial presence test of 182 days. Hence, by end of year 2012, I was a resident alien in USA.

My query is that while filing return do I need to show my salary of India for months of January - April 2012?

What should be best option for my case for filing taxes?

Can I pay as Dual Status Alien without need of ITIN for my wife?

Or should I file as Resident Alien?

Please suggest.


Last edited by technosavyy : 02-28-2013 at 03:07 PM.


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Old 02-28-2013, 08:39 PM
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Join Date: Oct 2010
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“In November, I passed the substantial presence test of 182 days. Hence, by end of year 2012, I was a resident alien in USA.”============>Actually, you are a dual status alien; as you entered the US before July 3rd during the tax year 2012 will meet the SPT and are considered dual-status alien and must file a dual-status tax return, which, for you, consists of a Form 1040 with a Form 1040NR as an attachment. In most cases, you cannot claim the Standard Deduction, cannot file jointly with your spouse (though you can claim your children as dependents), cannot claim the Head of Household filing status, and cannot claim either the Earned Income Credit, the education credits or the credit for the elderly or disabled. As you may have guessed, the dual-status return is somewhat complicated and probably should NOT be filed without professional help.HOWEVER, THISIS NOT THE CHOICE FOR YOU; AS YOU SADI ,YOUR WIFE IS IN INDIA NOE, NOT IN US; since you are married and if your wife is with you on a H-4 visa, then , you can both choose to be treated as resident aliens, regardless of whether you entered the US before or after July 3rd. 2012.If you arrived before July 3rd, you are already dual-status. If you arrived after July 2nd, you would have to use the First Year Choice option (and file the First Year Choice statement), then meet the requirements for choosing to file as a resident alien as well. These requirements are:
• Be a non-resident alien at the beginning of the year.
• Be a resident alien at the end of the tax year.
• Be married at the end of the year.
• Your spouse must join you in this choice.The results/consequences of this choice are as follows:
• You and your spouse are treated are treated as U.S. resident for the entireyear for income tax purposes.
• You and your spouse are taxed on all of your world-wide income.
• You and your spouse must file a joint income tax return for 2006.
• Neither you nor your wife can make this choice again in later tax years, even you are divorced, separated or remarried

“My query is that while filing return do I need to show my salary of India for months of January - April 2012?”======> You have a dual-status tax year when you have been both a resident alien and a nonresident alien in the same year. As a dual status alien, for the part of the year you are a resident alien,after May 2012, you are taxed on income from all sources. Income from sources outside the US is taxable if you receive it while you are a resident alien. The income is taxable even if you earned it while you were a nonresident alien before the end of the year. For the part of the year you are a nonresident alien, you are taxed on income from U.S. sources and on certain foreign source income treated as effectively connected with a U.S. trade or business. Income from sources outside the US that is not effectively connected with a trade or business in the US is not taxable if you receive it while you are a nonresident alien. The income is not taxable even if you earned it while you were a resident alien or if you became a resident alien or a U.S. citizen after receiving it and before the end of the year. Income from U.S. sources is taxable whether you receive it while a nonresident alien or a resident alien unless specifically exempt under the Internal Revenue Code or a tax treaty provision. Generally, tax treaty provisions apply only to the part of the year you were a nonresident. In certain cases, however, treaty provisions may apply while you were a resident alien. When determining what income is taxed in the United States, you must consider exemptions under U.S. tax law as well as the reduced tax rates and exemptions provided by tax treaties between the US and INDIA. As a Dual Status Alien, you cannot use the Standard Deduction in Form 1040NR. Also you cannot file Head of Household or a Joint Tax Return. You have to file as Single or Married Filing Separately. Since your spouse has no ITIN yet, you need to file your return as single.

“What should be best option for my case for filing taxes?”=======>Your choice is to file as a dual status alien; on your 2013 return , then yu can file jointly with your spouse as MFJ as a US resident for tax purposes.

“Can I pay as Dual Status Alien without need of ITIN for my wife? Or should I file as Resident Alien?”===========> Yes; to file as a dual status alien, your wife’s ITIN is NOT required. As described above.



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