1.5 Nonresident Alien Spouse

If you are married and at the end of the year one of you is a U.S. citizen or resident alien (1.18) and the other spouse is a nonresident alien (1.16), a joint return may be filed only if both of you make a special election to treat the nonresident alien spouse as a US. resident, which means you will both be taxed on your worldwide income. The same rule applies if one spouse is a “dual status” taxpayer for the year. Thus, if you are a U.S. citizen and your spouse is a nonresident alien at the beginning of the year who becomes a resident during the year, the special election must be made to file jointly. The election is made by attaching a signed statement to the joint return, indicating your intent to be treated as full-year U.S. residents. If you and your spouse make the election, you must keep books and records of your worldwide income and give the IRS access to such books and records.

Filing Tip

Election To File a Joint Return

Where a U.S. citizen or resident is married to a nonresident alien, the couple may file a joint return if both elect to be taxed on their worldwide income. The requirement that one spouse be a U.S. citizen or resident need be met only at the close of the year. Joint returns may be filed in the year of the election and all later years until the election is terminated.

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If the election is not made, you may be able to claim your nonresident alien spouse as an exemption on a return filed as married filing separately, but only if the spouse had no income and could not be claimed as a dependent by another taxpayer (21.2).

Once the election is made to treat a nonresident alien spouse as a U.S. resident, the election applies to later years unless you revoke it, or it is suspended or terminated under IRS rules. A revocation before the due date of the return is effective for that return. An election is suspended if neither spouse is a citizen or resident for any part of the taxable year. If an election is suspended it may again become effective if either spouse becomes a U.S. citizen or resident. If either spouse does not keep adequate records or provide the necessary information on world-wide income to the IRS, the election is terminated. An election also terminates if you legally separate under a decree of divorce or separate maintenance; the termination applies as of the beginning of the year in which the separation occurs. The election automatically terminates in the year following the year of the death of either spouse. However, if the survivor is a U.S. citizen or resident and has a qualifying child, he or she may be able to use joint return rates as a qualifying widow or widower (1.11) in the two years following the year of the spouse’s death. Once the election is terminated, neither spouse may ever again make the election to file jointly.