I am a non-resident, independent contractor, married to a US citizen and have filed my 1040-ES and 540-ES with my own information, leaving our my wife's details (which I gather is only required if I intended to file jointly?)

For 2012, I also intend to file the 1040 and 540 as married filing separately (and possibly so for the next 3 years).

This is because I am a non-resident for tax purposes and do not need to pay FICA if filing married filing separately.

However, if I ever find out, by 2015 (3 years from now) that it would have been beneficial for my family had I filed "married filing jointly", can I amend the tax returns for 2012, 2013 and 2014 and:

  1. file change in status from "married filing separately" to "married filing jointly"
  2. pay the FICA contributions that would have are now due otherwise (since I would have needed to contribute to FICA if "married filing jointly" versus not needing to do so, as I elect now, when filing as "married filing separately")

This resource might be useful regarding the 3 year amendment rule, specifically "(b) Joint return after filing separate return" : http://www.law.cornell.edu/uscode/text/26/6013

  • 1
    Selective reading again? What about 6013(a)(1) "no joint return shall be made if either the husband or wife at any time during the taxable year is a nonresident alien" and the very beginning of 6013(b) which restricts the applicability of the rule to those who have "... filed a separate return for a taxable year for which a joint return could have been made by him and his spouse under subsection (a)" which restriction you clearly do not meet since (a) specifically prohibits you from filing a joint return with your spouse? You really can't have your (FI)Cake and eat it too. – Dilip Sarwate Jan 11 '13 at 19:32
  • "6013(a)(1)" can be avoided by writing a letter to the IRS with both spouses choosing to make an election: irs.gov/Individuals/International-Taxpayers/… Hence, the "could" clause of "6013(b)" applies, as I could have been treated as a resident had both of us chosen to make the election in 2012. Is my argument valid? – sekharan Jan 11 '13 at 20:08
  • @sekharan no. Have you read my answer? If you file MFJ you will be relying on a different law. – littleadv Jan 11 '13 at 20:12
  • @littleadv: My question is, if I MFS now, can I amend the same tax return(s) to MFJ. While MFJ now would not allow me to change it after April, I have an inkling MFS now can be changed to MFJ within 3 years from now? – sekharan Jan 11 '13 at 20:17
  • If you elect to be treated as a resident for 2012, then you cannot avoid being treated as a resident and thus liable for FICA taxes, as well as taxes on your worldwide income, and this applies regardless of whether you file MFS or MFJ. It is not the case that FICA taxes are due on your self-employment income only if you file MFJ after you and your spouse elect to have you treated as a resident. If you have wages, tax must be withheld. If you are self-employed, the FICA taxes (both employee and employer share) are your responsibility to send in via 1040-ES etc. – Dilip Sarwate Jan 11 '13 at 20:39

You're looking at the wrong subsection. The one that discusses your situation is 26 USC 6013(g) (on the same page you linked). It says explicitly that you cannot revoke the election after the date on which the return is due. If you're filing a joint return - it will be based on 6013(g), not 6013(b).

So if you filed as MFJ, you cannot change it after April 15. The sub-section you talk about (26 USC 6013(b)) doesn't apply to you as you're a non-resident alien for that subsection and cannot file a joint return based on it.

You're talking about retroactively changing from NR MFS to R MFJ. Retroactive change from MFS to MFJ is authorized only by subsection (b).

Reading 6013(b) again, I see this:

Except as provided in paragraph (2), if an individual has filed a separate return for a taxable year for which a joint return could have been made by him and his spouse under subsection (a) and the time prescribed by law for filing the return for such taxable year has expired, such individual and his spouse may nevertheless make a joint return for such taxable year.

I believe in your case the condition

if an individual has filed a separate return for a taxable year for which a joint return could have been made by him and his spouse under subsection (a)

Doesn't hold (as you couldn't have filed under subsection (a), you could only file under subsection (g)).

So I believe you cannot make retroactive election after you've filed a NR return.

Do consult with a professional on it, as I'm not a professional and this is in no way a tax advice.

  • I don't follow. I am MFS in 2012 but plan to amend it to MFJ in 2015. I can't locate the explicit clause you mention. Is that '(3) Duration of election'? I can, in 2012, and hence could have, in 2015, file as resident if filing MFJ. Hence, the "could" clause of "6013(b)" applies, as I could have been treated as a resident had both of us chosen to make the election in 2012. Is my argument valid? – sekharan Jan 11 '13 at 20:14
  • @sekharan you're talking about amending from MFJ to MFS or from MFS to MFJ? I'm confused. – littleadv Jan 11 '13 at 20:34
  • talking about amending from MFS to MFJ – sekharan Jan 11 '13 at 21:34
  • 1
    @sekharan see my revised answer. My previous comment seems to be incorrect on the issue. – littleadv Jan 11 '13 at 21:48
  • 1
    If you agree with me that I'm correct about the retroactive part, what is unclear to you? No, you cannot retroactively change from MFS to MFJ if you were non-resident when you filed MFS (even if you could use 6013(g) at that time to file MFJ). Subsection a is not true for you, why would we assume otherwise? Had it been true for you, the question of whether to pay FICA or not wouldn't be relevant at all. I see no reason why would you need an attorney. Find CPA's that provide initial consultations for free, there are plenty of those. Usually the better ones. – littleadv Jan 12 '13 at 3:06

As a nonresident alien, you cannot file a joint return with your US citizen spouse; your tax status is MFS. But, with the consent of your spouse, you can elect to be treated as a US citizen/resident for tax purposes, and you can file a joint return with your spouse should it be your joint pleasure to do so. This election makes you liable to pay Social Security and Medicare taxes on your earned income; it doesn't matter diddly-squat that you are filing MFS after making the election to be treated as a resident or that you had some wages in early 2012 on which no Social Security or Medicare taxes were withheld because you were unmarried at that time and were a nonresident alien or that your visa status continues to be that of nonresident alien. Your tax status is that of a resident once you and your spouse tell the IRS that you want to be treated as a resident alien for tax purposes, and you are liable for FICA taxes on all your earned income.

What you want to do is

  • make an election to be treated as a resident for tax purposes

  • file an MFS return and not pay any FICA taxes on the grounds that your visa status is that of nonresident alien

  • have the option of amending your return from MFS to MFJ at a later date because you have suddenly decided that it is more advantageous to do so, and pay the FICA taxes then because you are now filing MFJ

The middle item is something you cannot do once you have elected to be treated as a resident for tax purposes. You do not get to file a nonresident tax return or avoid paying FICA taxes on the grounds that nonresident aliens (which is what the stamp in your passport says you are) are not liable for FICA tax. Nor do you get to use any part of the US-India Tax Treaty rules that apply to Indian citizens who have nonresident status in the US; you forfeit that right when you elect to be taxed as a US resident. The first part of the third item above is something that you could do, but it will make no difference as far as your FICA taxes for 2012 are concerned -- they are due by April 15, 2013 regardless of whether you file MFS or MFJ after electing to be treated as a resident-- only income taxes due might (possibly) change.

I will also recommend to your spouse that she become familiar with the innocent spouse part of the IRS regulations if she files a joint tax return with you.

  • For 2012, I dont want to do #1, but #2 yes. #3 not applicable now. In 2015, I *do want to do #1, #2 N/A, #3 becomes the question I am seeking an answer to – sekharan Jan 11 '13 at 21:58
  • There is no point in continuing this discussion. Since you dislike hearing what littleadv and I have tried to explain to you, you should file your income tax returns in accordance with your understanding of the tax laws, and the IRS will determine if your returns are in accordance with its understanding of the tax laws. I wish you all the best in your endeavours. – Dilip Sarwate Jan 12 '13 at 2:32
  • There is nothing to dislike about either answers. Facts remain true, whether I dislike it or not. I am having issues understanding details and need help. Prfessionals are not interested in me because they earn the same consulting fees doing less work. Most are not aware about NR laws either, and are not interested. The points under your "What you want to do is" is incorrect, and I tried to tell you what I really wanted to do. My question was simple: Can I file MFJ later? If yes, can I then pay the FICA that is due (since I do not need to pay FICA when filing MFS). Thank you for your time. – sekharan Jan 12 '13 at 2:40

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