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2015 Tax Returns and Green Cards

February 24, 2016 by Thomas Geygan

“Now is the winter of our discontent”  Richard The Third Act 1, scene 1, 1–4.  Okay it does not feel a lot like winter today, but tax season causes my discontent with some clients.  Everybody wants to maximize their tax refund, I understand and wholly agree with that feeling.  The problem becomes when tax return does not match the immigration application.  The two most common problems are filing status and number of dependents.

Filing Status

A number of people are filing head of household, not understanding the full meaning behind it.  You can file head of household if you:

  1. Were unmarried as of December 31, 2015 and
  2. Paid more than half the cost to run your home (or the home of a qualifying parent) in 2015 (rent, mortgage, utilities, etc.) and
  3. Supported a qualifying person.

If you were still legally married as of December 31 and a child lives with you, you may qualify for Head of Household under a slightly different set of rules. see below From <https://ttlc.intuit.com/questions/1894553-do-i-qualify-for-head-of-household>

Can a married person claim Head of Household filing status?

If you were still legally married as of December 31, you are considered unmarried (and therefore eligible for Head of Household) if all 5 of these conditions apply:

  • You won’t be filing jointly with your spouse; and
  • Your spouse didn’t live in your home after June (temporary absences due to illness, school, vacation, business, or military service don’t count); and
  • Your home was your child’s, stepchild’s, or foster child’s main home for more than half the year; and
  • You paid more than half the costs of keeping up your home during the tax year; and
  • You meet the qualifications to claim the child as your dependent, even if the other (noncustodial) parent is actually claiming the child as a dependent on their return.
    You can also be “considered unmarried” for Head of Household if your spouse was a nonresident alien at any time during the tax year and you’re not treating them as a resident alien.

Married filers who are “considered unmarried” cannot file with Head of Household status if their dependent is somebody other than a child, for example a parent.

From <https://ttlc.intuit.com/questions/2567672-can-a-married-person-claim-head-of-household-filing-status>

Now on the last one what some people like to rely on is the line “if your spouse was a nonresident alien”.  The problem is tax law is a lot like immigration law in that you always have to look deeper.

Substantial Presence Test

You will be considered a U.S. resident for tax purposes if you meet the substantial presence test for calendar year 2015. To meet this test, you must be physically present in the United States on at least:

  • 31 days during 2015, and
  • 183 days during the 3-year period that includes 2015, 2014, and 2013, counting:
    • All the days you were present in 2015, and
    • 13 of the days you were present in 2014, and
    • 16 of the days you were present in 2013.

Here is the IRS ruling on this:  https://www.irs.gov/pub/irs-pdf/p519.pdf

Dependents

Here is the summary rule for dependents:

Overview of the Rules for Claiming an Exemption for a Dependent

Caution
This table is only an overview of the rules. For details, see the rest of this publication.
  • You can’t claim any dependents if you, or your spouse if filing jointly, could be claimed as a dependent by another taxpayer.
  • You can’t claim a married person who files a joint return as a dependent unless that joint return is filed only to claim a refund of withheld income tax or estimated tax paid.
  • You can’t claim a person as a dependent unless that person is a U.S. citizen, U.S. resident alien, U.S. national, or a resident of Canada or Mexico.1
  • You can’t claim a person as a dependent unless that person is your qualifying child or qualifying relative.
Tests To Be a Qualifying Child Tests To Be a Qualifying Relative
  1. The child must be your son, daughter, stepchild, foster child, brother, sister, half brother, half sister, stepbrother, stepsister, or a descendant of any of them.
  2. The child must be (a) under age 19 at the end of the year and younger than you (or your spouse if filing jointly), (b) under age 24 at the end of the year, a student, and younger than you (or your spouse if filing jointly), or (c) any age if permanently and totally disabled.
  3. The child must have lived with you for more than half of the year.2
  4. The child must not have provided more than half of his or her own support for the year.
  5. The child must not be filing a joint return for the year (unless that joint return is filed only to claim a refund of withheld income tax or estimated tax paid).

If the child meets the rules to be a qualifying child of more than one person, only one person can actually treat the child as a qualifying child. See Qualifying Child of More Than One Person later to find out which person is the person entitled to claim the child as a qualifying child.

  1. The person can’t be your qualifying child or the qualifying child of any other taxpayer.
  2. The person either (a) must be related to you in one of the ways listed under Relatives who don’t have to live with you , or (b) must live with you all year as a member of your household2 (and your relationship must not violate local law).
  3. The person’s gross income for the year must be less than $4,000.3
  4. You must provide more than half of the person’s total support for the year.4
1 There is an exception for certain adopted children.
2 There are exceptions for temporary absences, children who were born or died during the year, children of divorced or separated parents (or parents who live apart), and kidnapped children.
3 There is an exception if the person is disabled and has income from a sheltered workshop.
4 There are exceptions for multiple support agreements, children of divorced or separated parents (or parents who live apart), and kidnapped children.

You can find the full rule here: https://www.irs.gov/publications/p501/ar02.html

Also please remember that if you are claiming the dependents on your tax return, you are increasing the amount of income needed under the affidavit of support.  This is because the dependents you list on your most recent tax return must be listed on your I-864 Affidavit of Support..

If you are either in the middle of an immigration process or will be starting one this years, please talk to an immigration attorney about how your tax filing will effect your immigration application.

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Filed Under: AOS Family, AOS Marriage, Soap Box

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