Taxpayer asks:
My husband is a non resident alien. We have been filing together as married. I am a US Citizen and together we have 2 children. Because he has an ITIN we have been missing out of the EIC credit. Can we file as single, since he is not considered married to me for tax purposes due to his legal status here?
Thanks.
Taxgirl says:
The Internal Revenue Service does not determine your marital status: that is determined by state law. If you are married for state purposes, you are married for federal purposes (the exception, of course, is for single-sex marriages which are specifically exempt from the definition of marriage for federal purposes).
The alternative to filing jointly is to file as married filing separately. However, in your case, that will not help you with the EIC (earned income tax credit, sometimes called EITC) since you may not claim EIC if your status is married filing separately.
As you noted, you and your spouse must have a Social Security number that is valid for employment for the EIC – you may not file with an ITIN (individual tax identification number). I would encourage you to check with your immigration attorney to make sure that isn’t possible (getting a SSN, that is) since a non-resident alien married to a U.S. citizen or resident alien and filing a joint return would otherwise qualify for the EIC.
All of that said, I don’t know the specifics of your situation, including your living and support arrangements, but you may claim the EIC if you file as head of household (HOH). You should consult with your tax professional to find out more.
I would caution you that the IRS has been cracking down on fraud associated with the EIC, so tread carefully on this issue.
While I understand that you want to maximize your tax benefits, you don’t want to do anything that would result in negative tax consequences to you or your spouse, especially as the latter could have some nasty immigration side effects. Good luck!
Before you go: be sure to read my disclaimer. Remember, I’m a lawyer and we love disclaimers.
If you have a question, here’s how to Ask The Taxgirl.
