Here's an interesting one. My client married a Thai woman last November (married in Thailand).

After the marriage, she remained in Thailand until the visa paperwork was processed and approved. He has been providing support for her (back in Thailand) for almost a year now. Can he claim her as a dependent?

asked 24 Oct '09, 22:38

TaxQueries's gravatar image

TaxQueries ♦♦
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A U.S. Citizen that is married to a nonresident alien can elect to file married filing jointly, but all worldwide income is subject to U.S. tax, and a statement signed by both spouses containing the information disclosed in Publication 519, Page 10 must be attached to the tax filing.

For your convenience, here is the link to Publication 519:

http://www.irs.gov/pub/irs-pdf/p519.pdf

If married filing joint is not selected, the U.S. Citizen would utilize married filing separate.

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answered 25 Oct '09, 01:43

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Brent Berkman
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No, for two reasons:

  1. You cannot claim your own spouse as a dependent.
  2. You cannot 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, for some part of the year.
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answered 29 Oct '09, 01:07

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Stephen Wein...
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True, but may still be able to claim his spouse's exemption - see below.

(09 Jun '10, 19:11) Tom

But yes, he can claim her as his dependent.

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answered 25 Oct '09, 13:45

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SandySea
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In reviewing Form 1040 instructions for dependents as well as Publication 519 dealing with nonresident aliens, I do not see where a spouse can be claimed as a dependent for a taxpayer in this situation. Can you please elaborate with some additional guidance? Thanks!

(25 Oct '09, 17:03) Brent Berkman

oops my bad. this would only be mexico canada part of North America, but now they include South Korea and India.... I am upvoting your answer...mine was not correct here; thank you!

(25 Oct '09, 17:34) SandySea

I was unaware of the special rule with regards to Mexico, Canada, South Korea, & India. As I do not see anything contained in the tax treaties, where is the guidance published? Thanks! (I'm also upvoting your answer, as you provide some good information!)

(25 Oct '09, 21:38) Brent Berkman

Thanks Brent! You also provide outstanding responses :)

(26 Oct '09, 12:45) SandySea

Generally, if you are a nonresident alien engaged in a trade or business in the United States, you can claim only one personal exemption. You may be able to claim an exemption for a spouse and a dependent if you are described in any of the following categories.

If you are a resident of Mexico or Canada or a national of the United States, you can also claim a personal exemption for your spouse if your spouse had no gross income for U.S. tax purposes and was not the dependent of another taxpayer. In addition, you can claim exemptions for your dependents who meet certain tests. Residents of Mexico, Canada, or nationals of the United States must use the same rules as U.S. citizens to determine who is a dependent and for which dependents exemptions can be claimed. See Publication 501 for these rules. Pursuant to tax treaties certain residents of South Korea and certain students and business apprentices from India may be able to claim exemptions for their spouse and dependents. Refer to IRS Publication 519 and to Revenue Procedure 93-20 for details.

This was taken in part from IRS website NR aliens figuring your exemptions.

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answered 26 Oct '09, 12:45

SandySea's gravatar image

SandySea
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Excellent and very helpful!

(26 Oct '09, 13:40) Brent Berkman

Thanks Brent :)

(26 Oct '09, 15:23) SandySea

However, there's nothing in the original question to indicate that the client is a NON-RESIDENT alien, so this answer may not apply.

For US citizens, US nationals, and RESIDENT aliens, the client can take his spouse's exemption, even if he files a separate return, if she has no income.

(09 Jun '10, 19:10) Tom

Right, just additional information even if off topic. That is the purpose and due to the Thai question, thought it was useful :)

(09 Jun '10, 20:41) SandySea

Brent & Stephen are correct that you can not claim your nonresident spouse as a dependent.

Brent is further correct that by spousal election under 6103(g), the nonresident spouse can be considered a US citizen for US income tax purposes, allowing the two to file jointly. A statement is attached to the first joint return and the election continues thereafter until terminated.

However, there is a third possibility: if the nonresident alien spouse has NO income from US sources (and can not be claimed as a dependent by any other taxpayer), the US citizen or resident can file MFS but claim a personal exemption for the nonresident spouse.

In either the second or third cases, the nonresident spouse needs an ITIN.

See IRC 151(b).

Also, from Pub 17, page 27, "Your Spouse's Exemption":

Separate return. If you file a separate return, you can claim the exemption for your spouse only if your spouse had no gross income, is not filing a return, and was not the dependent of another taxpayer. This is true even if the other taxpayer does not actually claim your spouse as a dependent. This is also true if your spouse is a non-resident alien."

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answered 06 Jun '10, 00:25

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Tom
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edited 07 Jun '10, 02:19

This is interesting because I also heard tis woman claimed for the use ofGeneric Viagra Online for all men in the world, I think that's simply perfect, it has sense.

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answered 22 Jun '11, 18:28

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carl
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-1

Absolutely not. To be a "dependent", a person must not be married to the taxpayer. The taxpayer's own spouse can never be claimed as a dependent.

The only two ways in which a taxpayer is ever allowed to claim the exemption for a person who is married to the taxpayer are:

a) by filing a joint return and claiming the exemption as an exemption for "your spouse", not "dependent", this answer original stated, or

b) on a separate return if the spouse had no gross income, is not filing a return, and could not be claimed as the dependent of any other taxpayer (whether or not the other taxpayer actually does claim the spouse as a dependent). I assume that this is the rule that the comment is attempting to reference, but it does not apply to this question, because 1. The question stated claiming the spouse as a dependent, and 2. The question did not state that the spouse had no gross income.

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answered 07 Jun '10, 00:57

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stephenweins...
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edited 09 Jun '10, 04:03

Sorry, not true. (Well, true that your spouse is never your dependent, but not true that you can't claim ever claim the spouse's exemption when not filing jointly.) See page 27-28 of Pub 17 "Your Spouse's Exemption".

(07 Jun '10, 02:16) Tom
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Asked: 24 Oct '09, 22:38

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Last updated: 22 Jun '11, 18:28