How To Elect to Have the IRS Consider Your Non-US Citizen or Resident Spouse as a US Tax Resident

In a prior post, we discussed the potential benefits for a US tax resident to elect to treat their spouse as a US tax resident even if they do not qualify. This post discusses how to make the election and a few additional considerations to keep in mind. It is, thankfully, relatively simple.

If the analysis shows that you should make the election, then you need to elect that the nonresident alien spouse be treated as a US tax resident. This can be done with a letter to the IRS attached to the resident’s annual tax return.  The letter itself must contain:

• A declaration that one spouse is a US tax resident;
• A declaration that the other spouse does not qualify as a US tax resident but is electing to be treated as one; and
• The signature of each spouse as well as the name, address, and social security number of each spouse.

If the nonresident spouse lacks a social security number, he or she will need to apply for one through the Social Security Administration or apply for an individual tax identification number (ITIN) through the IRS with Form W-7.

Once the election is made, it will remain in effect until the death of one spouse, divorce or legal separation, or revocation. Either spouse may revoke the election but revocation may only be done once. That is, you cannot make the election one year, revoke it for the next, and then elect it again the following year. It is thus advisable to discuss the implications of revoking with your tax preparer or a tax attorney prior to doing so.

James A. Kraehenbuehl

James A. Kraehenbuehl, founder of Mid-Atlantic Law and Tax, is an experienced business attorney, tax lawyer, and executive who has represented hundreds of clients, from individuals with simple tax preparation to global companies with complex legal issues.

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