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Ask Peter Griesch Your Own Question
Peter Griesch
Peter Griesch,
Category: Tax
Satisfied Customers: 324
Experience:  Tax Counsel at AIG, Inc.
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My husband is a non resident alien with an itin and uses

Customer Question

My husband is a non resident alien with an itin and uses that for our joint company. He has a full time job and uses a false ss# ***** that. Jow on earth do we file? We wre just married last year. I "own" our home and have one child. He has two children who he pays child support for every month.. Out of country. Help!
Submitted: 1 year ago.
Category: Tax
Expert:  Peter Griesch replied 1 year ago.

Why is he using a false SSN?

Do you actually own your home (you put "own" in quotations)?

Customer: replied 1 year ago.
He used a false Ssn out of fear.Yes I own the home
Expert:  Peter Griesch replied 1 year ago.

He should be using the ITIN. What is he in fear of?

In which country are the children?

Customer: replied 1 year ago.
right. But he is using the false one.Children are in mexico
Customer: replied 1 year ago.
He did not want to send a red flag for his employer. Does not want his employer to be. Trouble, also you may not legally work with an itin. It's a catch 22. It's s huge red flag
Expert:  Peter Griesch replied 1 year ago.

Ok. Understood. There are a number of issues here.

Since your husband is a nonresident alien, you would normally have two options. First, you could treat your husband as a resident alien for tax purposes and file a joint tax return. You would get an exemption for your husband, but all of his worldwide income will be taxed by the United States. The problem is that he's been using a false SSN. That means that his employer has been withholding tax, and paying over to the U.S., though because he's using a false SSN, that withholding has not been credited to him. Your choice would be to come clean and admit to using a false SSN, and claiming the taxes reported on his W-2, or lying on the return and saying he had no income.

Your other choice is to treat your spouse as a nonresident alien for tax purposes. If you choose this option, you cannot file a joint tax return. You must file with a status of "married filing separately." You normally can only claim a spousal exemption of your spouse has no U.S. income, but yours does, even if not properly reported.

The problem you'll run into with this option is, like above, if you use his ITIN as an identifier, it will be different from the false SSN on his W-2.

The above said, courts have recently sided with nonresident aliens that have, for example, used someone else's SSN to get a loan, or purchase a car. Thus, the greater of the two dangers is evading taxation by the U.S. You may want to consider filing a joint return, treating him as a resident alien, claiming the exemption, and reporting his W-2 income on the joint return.

While this is not ideal, and could present some immigration problems, at least it will not be tax evasion. Additionally, you need to consider that of you're taking steps to assist him in not reporting federal tax, you may also be guilty of evading taxation.

If you own the house, you'll qualify for the normal deductions, property tax, mortgage interest, etc.

You cannot claim his children as dependents for a deduction. They do not live with him/you, I'm assuming do not have ITIN s, and do not live in the U.S.

Customer: replied 1 year ago.
He has applied for resident status and his petition is underway. We have no intention of evading taxes. We want to report accurately but with his false ssn I'm not sure how to proceed ....
Expert:  Peter Griesch replied 1 year ago.

Sure, but as I mentioned above, while you're in a tough position, if you don't report the income, it will present problems. It may be better to report the income he earned under the false SSN then to not report the income.

Customer: replied 1 year ago.
Great, so do you think he should leave the itin out of it? Or somehow report that? And if so, how?
Expert:  Peter Griesch replied 1 year ago.

Well, as you can report income from multiple sources, and can attach multiple W-2s, 1099s, etc., I would report the income with your shared business using his ITIN, and his other job using the W-2 he'll receive.

Customer: replied 1 year ago.
to clarify. Report all his income to the itin?
Expert:  Peter Griesch replied 1 year ago.

Well, no. You have ti report the joint business income to the ITIN. The income from his job will be reported to the SSN supplied for his W-2.

If you report all to the ITIN, it would be like you failed to make proper payments, and that would probably result in you owing a substantial anount of tax.

It would be like he earned total compensation, but had nothing withheld by his employer. So, you'll need to report consistent with the W-2.

Customer: replied 1 year ago.
Ok, why don't we report the business income to my ss as well?
Expert:  Peter Griesch replied 1 year ago.

You can, if you can support that he owned the company but was entitled to no income.

Customer: replied 1 year ago.
What I mean is .... The business is both of ours. We should report together no?
Expert:  Peter Griesch replied 1 year ago.

Yes, if you are filing jointly, you will both report the income.

Expert:  Peter Griesch replied 1 year ago.

If you have any additional questions, please let me know.

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Thank you.