“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.
A number of people are filing head of household, not understanding the full meaning behind it. You can file head of household if you:
- Were unmarried as of December 31, 2015 and
- Paid more than half the cost to run your home (or the home of a qualifying parent) in 2015 (rent, mortgage, utilities, etc.) and
- 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.
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
Here is the summary rule for dependents:
Overview of the Rules for Claiming an Exemption for a Dependent
|This table is only an overview of the rules. For details, see the rest of this publication.
|Tests To Be a Qualifying Child
|Tests To Be a Qualifying Relative
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 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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