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Dear Brass Tax Presentations,
I have a client who is married and has a 15-month son. She lived in the USA all year with a child in 2023 and paid all expenses. Her husband immigrated to the USA in August 2023 and lived with her. Is any of these questions applied to them for EIC credit? I am double-minded on 1st choice. They are filing a Married file jointly. I know she can’t file HOH.
Do any of the following situations apply to you?
These may disqualify you from this credit.
- I, or my spouse, spent more than half the year living outside the United States.
- I, or my spouse, was a nonresident alien during any part of the year.
- I do not have a social security number that is valid for employment.
- My spouse does not have a social security number that is valid for employment.
- I, or my spouse, can be claimed as a qualifying dependent for earned income credit purposes on another person’s return.
- The earned income credit cannot be claimed this year
- None of the above.
I greatly appreciate your advice!!!
From Brass Tax Presentations
I don’t like this tool that you’re using here; it’s confusing. If they are going to file a joint return and Mom is considered a resident of the United States, then you can elect to treat Dad as a resident of the US for all of the tax year using IRC Section 6013(h). All you need to do is file a joint return and attach a statement which includes:
- A declaration that they are applying an IRC Section 6013(h) election and that they meet the requirements to do so.
- The name, address, and TIN of each spouse
- Both spouses need to sign the statement
If you do that, then you don’t have to worry about the nonresident issue. You should consider whether this is the best treatment because it will make all of Dad’s income for the year subject to US income tax (even income sourced outside of the US).