If, at the end of your tax year, you are married and one spouse is a U.S. citizen or a U.S. resident within the meaning of Internal Revenue Code (IRC) section 7701(b)(1)(A) and the other is not, you can choose to treat the nonresident spouse as a U.S. resident for tax purposes. This includes situations in which one of you was not a U.S. resident at the beginning of the tax year but was at the end of the year, and the other was not a U.S. resident at the end of the year.
If you and your spouse do not choose to treat the nonresident spouse as a U.S. 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 spouse. For more information, see Head of Household and Publication 501, Dependents, Standard Deduction, and Filing Information.
If you make this choice, the following rules apply:
S has been a U.S. citizen for many years and is married to T, who is neither a U.S. citizen nor a U.S. resident within the meaning of IRC section 7701(b)(1)(A). S and T make the choice to treat T as a U.S. resident by attaching a statement to their joint return. S and T 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 S and T must file a joint return for the year they make the choice, so long as one spouse is a U.S. citizen or a U.S. resident within the meaning of IRC section 7701(b)(1)(A), they can file either joint or separate returns for later years.
CAUTION! If you file a joint return under this provision, the special instructions and restrictions for dual-status taxpayers do not apply to you.
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 information:
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 within 3 years from the date you filed your original U.S. income tax return or 2 years from the date you paid your income tax for that year, whichever is later. 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.
The choice to be treated as a U.S. resident does not apply to any later tax year if neither of you is a U.S. citizen or a U.S. resident within the meaning of IRC section 7701(b)(1)(A) at any time during the later tax year.
D was a U.S. resident within the meaning of IRC section 7701(b)(1)(A) on December 31, 2022, and married to E, who was neither a U.S. citizen nor a U.S. resident within the meaning of IRC section 7701(b)(1)(A). They chose to treat E as a U.S. resident and filed a joint 2022 income tax return. Because D left the United States on January 10, 2023, and did not return at all during the year, D was not a U.S. resident for tax year 2023. E remained a nonresident for that year. Since neither D nor E was a U.S. resident at any time during 2023, their choice to treat E as a U.S. resident is suspended for that year. For 2023, both are treated as nonresidents. If D becomes a U.S. resident again in 2024, their choice to treat E as a U.S. resident is no longer suspended, and they must file either joint or separate income tax returns reporting their worldwide income for tax year 2024.
Once made, the choice to be treated as a U.S. resident for federal income tax and withholding purposes applies to all later years unless suspended (as explained above) or ended in one of the ways shown below:
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.
CAUTION! If the choice is ended for any of the reasons listed above, neither spouse can make this choice in any later tax year, even if married to a different individual – it is a once-in-a-lifetime choice.
If your spouse is neither a U.S. citizen nor a U.S. resident within the meaning of IRC section 7701(b)(1)(A) and you file a joint or separate return, your spouse must have either a Social Security Number (SSN) or an Individual Taxpayer Identification Number (ITIN). To get an SSN for your spouse, apply at a social security office or U.S. consulate. You must complete Form SS-5. You must also provide original or certified copies of documents to verify your spouse's age, identity, and citizenship. If your spouse is not eligible to get an SSN, they can file Form W-7 with the IRS to apply for an ITIN. Refer to Taxpayer Identification Numbers (TIN) for more information.
Note: This page contains one or more references to the Internal Revenue Code (IRC), Treasury Regulations, court cases, or other official tax guidance. References to these legal authorities are included for the convenience of those who would like to read the technical reference material. To access the applicable IRC sections, Treasury Regulations, or other official tax guidance, visit the Tax Code, Regulations, and Official Guidance page. To access any Tax Court cases filed on or after May 1, 1986, visit the Opinions Search page of the United States Tax Court.