# ITIN & Unfilled Tax Catch 22



## LondonMan (Jul 21, 2016)

Hi all, 

This is my first post and I'm in a bit of a bind. I'm applying for an ITIN for my wife in order to file taxes for the last three years (I've not done so but don't owe the IRS). 

I was told by several Ex-Pat accountants and by TurboTax customer service when I had an issue that the ITIN was required to file.

I'd like to file my taxes and send the ITIN request in the same package because one requirement of the ITIN is an "original, valid tax return"which I don't have because I haven't filled. I feel like I might be in a Catch 22: can't file taxes without an ITIN and can't file for an ITIN without tax returns. 

This is stressful because the wife and I would like to move to the US but the outstanding tax filings are preventing the visa processing from proceeding. Any help about how to tackle this would be really appreciated. 

Thank you, 
LondonMan


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## ForeignBody (Oct 20, 2011)

LondonMan said:


> Hi all,
> 
> This is my first post and I'm in a bit of a bind. I'm applying for an ITIN for my wife in order to file taxes for the last three years (I've not done so but don't owe the IRS).
> 
> ...


I have no direct experience of this but from the following link (look under How Do I Apply for an ITIN) you send the tax form with the W-7.

https://www.irs.gov/individuals/general-itin-information


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## Bevdeforges (Nov 16, 2007)

As already indicated, yes you can include your W-7 in with your initial tax return.

OTOH, if you're filing under the streamlined process to bring your filing status up to date, you don't necessarily have to file a joint return if she is not a US citizen and has no filing requirement in her own name. And if you're looking to move to the US, she'll be getting a regular social security number on arrival (assuming you're getting a spouse visa for her). You could simply file your back filings on a "married, filing separately" basis and then she starts filing with you after you are settled in the US. 
Cheers,
Bev


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## LondonMan (Jul 21, 2016)

Hi Bevdeforges,

I sent this yesterday in response but my response didn't post:

Really appreciate the response. I was told that I wouldn't be able to file taxes at all (even separately) without an ITIN. Do you feel that's incorrect? 

Additionally, I was hoping that I would be able to apply for the ITIN and file under streamlined process to bring your filing status up to date. Your post suggests that it is either or, can you elaborate? 

Thank you again!


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## Bevdeforges (Nov 16, 2007)

> I was told that I wouldn't be able to file taxes at all (even separately) without an ITIN. Do you feel that's incorrect?


Basically, it's incorrect, however if you're planning on e-filing, it's kind of true. (And lately, most paid tax preparers are required to e-file all returns). Many e-filing programs will reject your return out of hand if you file as "married, filing separately" if you don't have a SSN or ITIN for your spouse. However, even the IRS instructions say (somewhere) that for filing separately, if your spouse is an NRA (non-resident alien - nothing to do with guns <g>) you should put "NRA" in the space for spouse's SSN. (There has been an ongoing debate here on the forum whether you "must" include your spouse's name when filing separately if said spouse is an NRA.)

In any event, if you mail your forms in (which you have to anyhow for the back filings under the Streamlined program), you can fill in those spaces however you like. They'll get back to you if they have questions - but that's how I've filed my returns for the last 20+ years and never a peep out of the folks at the IRS.



> , I was hoping that I would be able to apply for the ITIN and file under streamlined process to bring your filing status up to date.


Someone else gave you the link to the IRS page that says you can simply send in your (current year) return with the W-7 (application for an ITIN) attached. Again, you have to mail it in. But if you're going for a spouse visa for your wife, I'd really hesitate to request an ITIN because on arrival she's going to get a regular SSN. I'm not sure how they differentiate between the two because both numbers (and just about all US Government i.d. numbers) are 9 digits in the xxx-xx-xxxx format. If she has no obligation to file, I'd just wait until she gets her "real" SSN. Otherwise there is going to be massive confusion on arrival in the States.
Cheers,
Bev


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## LondonMan (Jul 21, 2016)

Bev, really appreciate it. As The Donald would say, "This is Yuge." I'm going to mail this in and file NRA so I don't deal with the electronic issue. I'll attach the W7 and supporting documentation in case they need it (so they'll have it) but provide instructions not to kick off the ITIN process unless necessary. 

Thank you again!


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## Bevdeforges (Nov 16, 2007)

Honestly, if you're filing separately I wouldn't include the W-7. If it's there, they'll assign her an ITIN and then you'll have to find or figure out how to change it to (or exchange it for) a regular SSN when you get to the States.
Cheers,
Bev


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## LondonMan (Jul 21, 2016)

Hi Bev, 

Thanks for the advice, I'm on the brink of sending everything in and am taking your advice about waiting to send in the W7. 

I know I'm using you as my own personal Expat Guru, but I have another question. I don't qualify for the Form 2555 exemption (though it's close). Is there another exemption I can apply under so my taxes aren't considered a US salary?

Best,
Quinn


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## Bevdeforges (Nov 16, 2007)

When you say "it's close" - are you referring to the physical presence test or the bona fide resident test? The bona fide residence test doesn't require the 330 days outside the US, and the physical presence test can be for a "rolling" period of 12 consecutive months, not necessarily a full calendar year.

But if you really can't take the FEIE, you should look into taking the Foreign Tax Credit for income tax you paid to the UK during the calendar year(s) in question. The FTC is perhaps a bit more complicated to claim - but given that tax rates in the UK are generally a bit higher than those in the US, it should eliminate the dual taxation side of things.

https://www.irs.gov/publications/p54/ch04.html#en_US_2015_publink100047399 for the official explanation. And, don't forget that in your year of arrival, you can use the physical presence test (if you qualify) to exclude earned income for only a part of the year in question. (Scroll down the page to Figure 4-b to see a diagram of how that works.)
Cheers,
Bev


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## LondonMan (Jul 21, 2016)

After looking further into it both the bonafide residence and physical presence tests are required for a 12 month period starting on the date of your choice and filed in the year in which that 12 month period ends (e.g. if you start your 12 month period in April 2015 then you can file the form 2555 exemption in 2016).

Thanks for the help, Bev. Really appreciate it. 

LM


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