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Lev
Lev, Tax Advisor
Category: Tax
Satisfied Customers: 22641
Experience:  Taxes, Immigration, Labor Relations
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I have just been audited by California for not using the Head

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I have just been audited by California for not using the Head of Household title correctly. I moved to CA from VA on August 30, 2007. My 2 year old son did not move here until October 20, 2007. He was staying with my sister in MD. I was married, but my ex-husband was living and working in Thailand. He came here for a visit on December 17, 2007. During that time, we went to NV to visit his brother for Xmas, and MD to visit my sister for New Year. We came back to CA on January 03, and after a meeting with immigration on the 4th, he took his suitcase, which he never unpacked, and went to stay with his brother in NV. So my question is, does that constitute him living with me? And if so, should we file jointly? And if we file jointly, does he have to report his Thai income? He was still working for his Thai employer, but was physically in the US. And if that income doesn't count, can I claim him as a dependent for the 13 days or so he was here in 2007? Also, we are officially divorced now.
Submitted: 5 years ago.
Category: Tax
Expert:  Lev replied 5 years ago.

First of all - as you have been audited - you had better to have a local CPA or Enrolled Agent to represent you with the IRS.

Not only that person will instruct you for the best response, but the IRS agent will act differently if there will be a qualified representation in your case.

 

For the definition of HOH status - please refer to the IRS publication 501 pages 6-8 - http://www.irs.gov/pub/irs-pdf/p501.pdf

 

To qualify for head of household status, you must be either unmarried or considered unmarried on the last day of the year. You are considered unmarried on the last day of the tax year if you meet all the following tests.

  1. You file a separate return.

  2. You paid more than half the cost of keeping up your home for the tax year.

  3. Your spouse did not live in your home during the last 6 months of the tax year. Your spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances.

  4. Your home was the main home of your child, stepchild, or foster child for more than half the year.

  5. You must be able to claim an exemption for the child.

Nonresident alien spouse. You are considered unmarried for head of household purposes if your spouse was a nonresident alien at any time during the year and you do not choose to treat your nonresident spouse as a resident alien. However, your spouse is not a qualifying person for head of household purposes. You must have another qualifying person and meet the other tests to be eligible to file as a head of household.

Please let me know if any clarification or additional information is needed.

Customer: replied 5 years ago.
Just to clarify...if the law states that if I was married and living with my spouse during the last 6 months of 2007, then I cannot qualify for head of household. But my spouse was a nonresident alien during most of 2007 (including, of course, the last 6 months), then I'm considered unmarried for Head of Household purposes. Does that mean that I was considered unmarried for all of 2007, and can claim Head of Household, or that I was considered unmarried only during the time he was in Thailand (until December 17, 2007.) I definitely meet all the other HOH requirements, but still a little unclear on whether I was considered married or not on the last day of 2007. So confusing! Thanks so much for your help.
Expert:  Lev replied 5 years ago.

That is correct

"You are considered unmarried for head of household purposes if your spouse was a nonresident alien at any time during the year and you do not choose to treat your nonresident spouse as a resident alien."

 

For tax purposes generally - you are considered as married for the whole year - as long as you married on the last day of the year.

However because your spouse was a nonresident alien at any time during the year - you are considered unmarried for head of household purposes.

It doesn't matter if your spouse became a resident during the tax year.

 

I suggest you to provide to the IRA agent who audits you - the reference to this publication along with supporting documents that your spouse was a nonresident alien during 2007.

 

Lev, Tax Advisor
Category: Tax
Satisfied Customers: 22641
Experience: Taxes, Immigration, Labor Relations
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