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PDtax
PDtax, CPA firm owner
Category: Tax
Satisfied Customers: 1995
Experience:  32 years tax experience, including four years at a Big 4 firm.
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I am an American living abroad and need to catch up on filing

Resolved Question:

I am an American living abroad and need to catch up on filing my tax returns. I got married to a non-American during 2011. Will my spouse now also need to file a U.S. tax return? What about for years prior to when we got married?
Submitted: 2 years ago.
Category: Tax
Expert:  PDtax replied 2 years ago.

PDtax :

Welcome to the site. I will be helping you today.

PDtax :

good morning. IRS covers this subject in one of its publications, U.S. Citizens and Resident Aliens Abroad - Nonresident Alien Spouse (link: http://www.irs.gov/businesses/small/international/article/0,,id=96734,00.html)

PDtax :

The answer is you can elect to file jointly for your 2011 income as follws, from that publication:

PDtax :

Election to File Joint Return

If, at the end of your tax year, you are married and one spouse is a U.S. citizen or a resident alien and the other is a nonresident alien, you can choose to treat the nonresident as a U.S. resident. This includes situations in which one of you is a nonresident alien at the beginning of the tax year, but a resident alien at the end of the year, and the other is a nonresident alien at the end of the year.

If you make this choice, the following rules apply:
You and your spouse are treated, for income tax purposes, as residents for all tax years that the choice is in effect,
You must file a joint income tax return for the year you make the choice, and
Each spouse must report his or her entire worldwide income on the joint income tax return

If you make this choice, you and your spouse are treated as residents for your entire tax year for the purpose of your federal individual income tax return, and for the purpose of withholding U.S. federal income tax from your wages.

However for the purpose of Chapter 3 withholding, you may still be treated as a nonresident alien. Refer to Withholding of Tax on Nonresident Aliens and Foreign Corporations (Chapter 3 of the IRC) in Tax Withholding Types.

In addition, you may still be treated as a nonresident alien for the purpose of withholding Social Security and Medicare tax. Refer to Aliens Employed in the U.S. – Social Security Taxes.


Generally, neither you nor your spouse can claim tax treaty benefits as a resident of a foreign country for a tax year for which the choice is in effect and you are both taxed on worldwide income. However, the exception to the saving clause of a particular tax treaty might allow a resident alien to claim a tax treaty benefit on certain specified income. You must file a joint income tax return for the year you make the choice, but you and your spouse can file joint or separate returns in later years.
Example:

XXXXX XXXXX has been a US citizen for many years. She is married to Norman, a nonresident alien. Pat and Norman make the choice to treat Norman as a resident alien by attaching a statement to their joint return. Pat and Norman must report their worldwide income for the year they make the choice and for all later years unless, the choice is ended or suspended. Although Pat and Norman must file a joint return for the year they make the choice, as long as one spouse is a US citizen or resident, they can file either joint or separate returns for later years.
How to Make the Choice

Attach a statement, signed by both spouses, to your joint return for the first tax year for which the choice applies. It should contain the following:
A declaration that one spouse was a nonresident alien and the other spouse a U.S. citizen or resident alien on the last day of your tax year, and that you choose to be treated as US residents for the entire tax year, and
The name, address, and social security number (or individual taxpayer identification number) of each spouse. (If one spouse died, include the name and address of the person making the choice for the deceased spouse.)

You generally make this choice when you file your joint return. However, you can also make the choice by filing a joint amended return on Form 1040X, Amended U.S. Individual Income Tax Return (PDF). If you make the choice with an amended return, you and your spouse must also amend any returns that you may have filed after the year for which you made the choice.

You generally must file the amended joint return within 3 years from the date you filed your original US income tax return or 2 years from the date you paid your income tax for that year, whichever is later.
Suspending the Choice

The choice to be treated as a resident alien does not apply to any later tax year if neither of you is a US citizen or resident alien at any time during the later tax year.
Example:

Dick Brown was a resident alien on December 31, 2009, and married to Judy, a nonresident alien. They chose to treat Judy as a resident alien and filed a joint 2009 income tax return. On January 10, 2010, Dick became a nonresident alien. Judy had remained a nonresident alien. Since neither Dick nor Judy is a resident alien at any time during 2010, their choice to treat Judy as a resident alien is suspended for that year. For 2010, both are treated as nonresident aliens. If Dick becomes a resident alien again in 2011, their choice to treat Judy as a resident alien is no longer suspended. Since Dick is a resident alien, they can again choose to treat Judy as a resident alien and file a joint 2011 income tax return.
Ending the Choice

Once made, the choice to be treated as a resident applies to all later years unless suspended (as explained above) or ended in one of the ways shown below. If the choice is ended for any of the reasons listed below, neither spouse can make a choice in any later tax year.
Revocation by either spouse
Death of either spouse
Legal Separation
Inadequate records

For a more detailed explanation of these items, refer to the section titled Ending the Choice in Chapter 1 of Publication 519, U.S. Tax Guide for Aliens.

Note: If you do not choose to treat your nonresident spouse as a US resident, you may be able to use head of household filing status. To use this status, you must pay more than half the cost of maintaining a household for certain dependents or relatives other than your nonresident alien spouse. For more information, refer to Head of Household and Publication 501.

PDtax :

For years prior to 2011, she does not have to file jointly with you; you weren't married.

PDtax :

sorry, the last sentence was my own.

PDtax :

This choice will have an impact on your taxation in your country of residence and foreign tax credits as applicable. Please review your tax situation with a tax pro in your country of residence to see how the election impacts your filing there.

PDtax :

Thanks for asking at Just Answer. Please ask any follow up questions you may have, or leave positive feedback to close out your question.

PDtax, CPA firm owner
Category: Tax
Satisfied Customers: 1995
Experience: 32 years tax experience, including four years at a Big 4 firm.
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