# filing separately & jointly



## withoutaclue

Hi ... my wife is Dutch and I'm US. We are both french residents. My wife works in europe, files in france - she has no requirement to file US returns. I do not work but began receiving SS pension payments in 2014. And, as I understand it, as residents of france and married, we must file jointly in france with my SS payments subject to french taxation. 

My question is: I will also have to pay taxes on my SS payments in USA so how do I file US returns separately and declare the taxes already paid in france? Are the taxes paid in france easy to break out?

Apologies for the muddled explanation and question ... but note my username! 

Thanks in advance for any help on this.


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## BBCWatcher

withoutaclue said:


> I do not work but began receiving SS pension payments in 2014. And, as I understand it, as residents of france and married, we must file jointly in france with my SS payments subject to french taxation.


Are you referring to U.S. Social Security or French Social Security? If U.S. Social Security, per the U.S.-France tax treaty (Article 18, Paragraph 1, Section b) your retirement benefits are only taxable in the U.S. (if they're taxable at all). If French Social Security, they are only taxable in France.

So that makes things much easier, doesn't it?

On edit: I checked the 2004 and 2009 protocol amendments to the treaty, and I don't see any material changes to the tax treatment of social security benefits. Note that if you qualify for U.S. benefits and you contributed into the French system for "a while" (but not too long) it's quite possible you also qualify for French social security benefits, or vice versa. Please do check that if applicable.


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## withoutaclue

Thank you BBCWatcher! That helps immensely! WRT french SS, thanks for pointing that out however I do not qualify ... but my wife does!


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## Bevdeforges

OK, one thing to consider regarding the US side of things....

If your wife has no filing requirement for the US, then normally you would file as "married, filing separately" - however, if you do so, then 85% of your US SS benefit is subject to taxation. Doesn't mean it will be taxed, just that it goes into your Adjusted Gross Income AGI and then is subject to your usual personal exemption plus standard deduction or itemized deductions.

I'm going to move this over to the Expat Tax section, since you're likely to find more help there.
Cheers,
Bev


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## withoutaclue

Thanks very much Bev!


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## Bevdeforges

Actually, on the French side of things, your US Social Security is definitely not taxed by the French. You do have to declare it - twice, once on the regular form and a second time on the 2047 form, which is a special form to detail all "foreign source" income (like your US Social Security). 

The French tax forms won't be available until about April for 2014, so no point getting into too much detail just yet. But the general approach is that you declare the "foreign source income" along with your wife's income and any other income you have, then on the foreign source form, you explain what it is and add it to an item usually on the back side of the 2047 form that states that it is income that is taken into account in calculating your taxes, however you should be granted a full credit (at French tax rates) for the additional tax it generated for you. (The French like these sorts of complicated things, but it winds up working out just fine.)
Cheers,
Bev


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## withoutaclue

Thank you once again Bev! That is so very helpful. On the cultural side, I have noticed that the oft-used 'c'est compliqué' has a place in the french way of life ... and as you suggest, it usually works out.
Cheers
Chuck


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## MacW

*Dutch American*

Hi,
I am a Dutch and American citizen, married to a dutch wife and presently living in Oman. I was recently informed about FATCA, US tax thing. 
My question: When I file for taxes in the US on assets we have in the Netherlands , can I file separately from my wife for my share of our house and stocks, which we co-own. I do not have an income and havent had one for the last 7 years. 

Regards,

Sjoerd


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## Bevdeforges

You can file separately as "married, filing separately" and in that case you only declare your income - i.e. income in your name. On the jointly owned assets, the conventional way is to claim one half of any income accruing from jointly owned property. (Depending on how your home country recognizes marital assets, you may allocate the income differently.) 

The financial assets need to be reported on a Fbar/FinCen114 (online form only) - and this includes all jointly held assets.
Cheers,
Bev


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## MacW

Thanks for the reply Bev, but what concerns me is if you look on form 1040, at filing status , I can select married, filing separately but I will need to give her name and SSN, which she doesn't have.
regards,
Sjoerd


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## Bevdeforges

No, you don't need to give either her name nor her SSN. (BBCWatcher will no doubt be along to insist that you must give her name, but I never give my NRA spouse's name and they've never said a word about it yet.) For the SSN you just enter "NRA" (for Non-Resident Alien - NOT the gun people!) and that's it. (I enter NRA for both spouse's name and SSN.)

Unless you are taking your spouse as a dependent, she does not need to have either an SSN or an ITIN.

For "normal" filings (i.e. US residents) they use the information to match your return with your spouse's return - because there are rules that you have to take certain option in common when filing separately - but NRA alerts them that your spouse does not file a US return because they do not need to.
Cheers,
Bev


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## BBCWatcher

Bevdeforges said:


> No, you don't need to give either her name nor her SSN.


Once again, please find the IRS instruction, regulation, publication, or portion of the tax code that permits a filer not to provide his/her spouse's *name* on IRS Form 1040 either at the top (if a joint return) or in the space provided in line 3 (if a separate return).(*)

Every time this issue comes up you make the same claim but haven't provided any such reference. If you cannot provide any such reference, then please stop recommending that others do what you do. _You_ can do whatever you want, but nobody wants tax advice that lacks foundation.

I don't care what you do. I only care about the truth here. Let's stick to the facts please. If you can provide such a reference, please do. If you cannot, please stop.

To expand on another point you raised, please note that the instructions for IRS Form 1040 require your spouse to have an *SSN or ITIN* (and to provide it) if any of these situations apply:

(a) You file a joint return;
(b) You file a separate return and claim an exemption for your spouse;
(c) Your spouse files a separate return (which could be a 1040NR, as an example).

If your spouse needs an ITIN he/she can use IRS Form W-7 to obtain one.

(*) And I'll do that myself. There is one such situation, at least in terms of the top of IRS Form 1040. If you qualify to file as Head of Household, and you do file as Head of Household (checking box 4 on IRS Form 1040), and your spouse is a Non-Resident Alien (NRA), _then_ you are not required to provide your spouse's name in either of these two places on IRS Form 1040.


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## iota2014

BBCWatcher said:


> Every time this issue comes up you make the same claim but haven't provided any such reference. If you cannot provide any such reference, then please stop recommending that others do what you do. _You_ can do whatever you want, but nobody wants tax advice that lacks foundation.


Tax advice from someone who's actually successfully done the thing being enquired about, tends to be more useful than tax advice based on studying the wording of IRS material, IMO. Surely it's to be welcomed when repeated practice establishes that there's at least one insignificant detail the IRS is not interested in?


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## BBCWatcher

No, there is nothing whatsoever ambiguous about IRS Form 1040 in this respect. This is not some search for hidden meaning in ancient papyrus scrolls. Form 1040 says this, right at the top: "If a joint return, spouse’s first name and initial / Last name" and "3. Married filing separately. Enter spouse’s SSN above and full name here." The form simply cannot be any clearer, and the accompanying instructions explain what to do if your spouse doesn't have a SSN.

If Bev had written this:

"IRS Form 1040 requires providing your spouse's name per its instructions (with the possible exception of Head of Household filers).

"In the past, I have chosen to ignore those instructions and have declined to provide my spouse's name. Thus far the IRS has not contacted me requesting my spouse's name."

then I'd have no objection (assuming the above accurately describes Bev's personal experience).

Tell adults _the truth_ about what the IRS demands, and let those adults decide for themselves whether they want to commit their own acts of civil disobedience or not. But don't misrepresent what the IRS demands.


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## iota2014

Depends on your circumstances and disposition I suppose. Personally I take the view that the IRS "demands" a good deal of information it really has no right to. And quite possibly, in many cases, doesn't even want. In that context it's very useful to hear what someone else has done without any objections being raised.

If "NRA" in the spouse name space were a cause for concern it should be picked up during routine error processing and flagged for correspondence or rejection. Bev's experience shows that's not what happens. Which is good to know.


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## Bevdeforges

Actually, it was one of the staff from the Paris IRS office who told me to put NRA in both spaces. (At one of the tax seminars that used to be run every year here in Paris - possibly a thing of the past now, given that the Paris office has shut down.) Granted, that was some 20 years ago, but given that it has worked since then, I guess maybe he told me the right thing. Or maybe it was the guy from Price Waterhouse who was at the seminar. 

If they really, really need or want to know my NRA spouse's name, I expect they'll be in touch - but he does not have, nor will he be getting an SSN nor an ITIN any time soon.
Cheers,
Bev


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## maz57

Sorry, BBC. I'm in Bev's camp on this one. In the case of an expat filing Married Filing Separately, the IRS has no need and no right to ask for the NRA spouse's name. Form 1040 wasn't written with expats in mind. NRA spouses have no obligation or connection to the US government. The IRS regularly asks for lots of useless information, but in the case of an expat 1040 the IRS asking for this particular bit of useless information is downright invasive and disgusting. (In the same league as being forced to register with the Financial Crimes Enforcement every year like a sex offender.)

For what its worth, on many past returns I filed MFS, wrote NRA in both the name and number spaces AND claimed the exemption for my spouse. As I've mentioned before, I've got my orders and I fear my spouse way more than I fear the IRS. They will never know that name. 

I never heard any complaint from the IRS. 

If we all actually filled out every space on every form the US government comes up with, the world economy would come to a screeching halt. Writing NRA works fine. Time to move on.


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## BBCWatcher

maz57 said:


> In the case of an expat filing Married Filing Separately, the IRS has no need and no right to ask for the NRA spouse's name.


You're incorrect on the facts, again.

The facts here are _incontrovertible_. How you, the tax filer, choose to act is your own personal decision. But nobody should pretend the IRS doesn't ask. They do, _obviously_. It's right there in black and white, in plain English, at the top of Form 1040.

Don't foist your political opinions on others without labeling them as such. You're entitled to your opinions, but you're not entitled to misrepresent or mischaracterize facts. I'm going to insist we describe the facts clearly and truthfully. If you then want to express political opinions, your experiences, etc. -- clearly labeled as such -- that's up to you.

Careful readers will note by now that I have not described what I do or don't do. (But who cares about what I do or don't do?)

So here's the plain, simple fact, again: if you're married(*), the IRS requires you to provide your spouse's name on IRS Form 1040. (With the possible exception of Head of Household filers.)



> Form 1040 wasn't written with expats in mind. NRA spouses have no obligation or connection to the US government.


Again, that's wrong on the facts.

Why then do the instructions say to write "NRA" in place of the SSN or ITIN when you have a NRA spouse who does not have a SSN or ITIN and is not required to obtain one? Why does the Foreign Earned Income Exclusion exist? Why does "Foreign country name" appear at the very top of IRS Form 1040, to support non-U.S. mailing addresses?

You're entitled to your own politics and your own opinions, and to agreement on your politics with somebody else. But facts matter, and I try to understand them as best I can. In this case I don't have to try hard. "Spouse's name" means spouse's name.

(*) Note that marriage in this sense doesn't exist unless you've gone to a government to get it. The IRS is not asking about your girlfriend, boyfriend, the parent(s) of your children, the ceremony you had or didn't have in a house of worship, etc. The IRS asks for the name of the party with whom you entered a legal contract exclusively established and recognized by government. If you don't want governments asking about the contract you registered with government, then don't register a contract with government, i.e. don't get legally married.


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## maz57

Here's a fact for you: Expats who write NRA in those two spaces (which includes Bev, myself, and countless others, I'm sure), experience no hassle from the IRS when doing so. Anybody who is a regular on this forum knows you are "Mr. Compliance"(*) and are student of the fine points of the US tax code, but most would rather just find out what works, file their returns, and get on with their lives. Most expats (~94%, as I recall), don't owe tax anyway. 

I agree it is good to know what the instructions actually say even if they are not going to be exactly followed. We can depend on you to keep us well informed on that subject. Folks who aren't bothered by IRS nosiness will write a name in that space. Those who are bothered will write NRA, and experience no problem when they do so.

The most important thing about any return is that it be "processable", i.e. doesn't cause the IRS computer system to reject it. The IRS system clearly isn't worried about this particular thing. (Who knows, the system may even think NRA is a name; it might be different if you left those fields blank.)

*Not intended as an insult, just a descriptive moniker. Your explanations/interpretations of complicated IRS instructions are undoubtedly very useful for newcomers to the forum.

Now can we move on?


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## BBCWatcher

maz57 said:


> Here's a fact for you: Expats who write NRA in those two spaces (which includes Bev, myself, and countless others, I'm sure), experience no hassle from the IRS when doing so.


You can only speak from your personal experience. If you have broader, reliable data on (past) audit rates among this small cohort, fine, let's see it. I'm open to facts and evidence, always.

We also don't know what the future holds. The IRS periodically revises its audit criteria/scoring.



> Anybody who is a regular on this forum knows you are "Mr. Compliance"(*)....


I'm Mr. Truth, Mr. Facts -- or at least that's what I strive toward, to understand what the reality is. I try to treat adults as adults. What you do or don't do in terms of compliance is your business with the IRS, and you're welcome to it. But the _definition_ of compliance, in this particular case, is 100% clear.

I'd expect no less of anybody providing expert (or semi-expert) advice. Doctors, lawyers... it doesn't matter. Tell me the truth, then let me decide what to do or not to do. If you, I, or the people we hire for advice have their own politics, opinions, and/or experiences, _fine_, but make sure they're labeled as such.

That's all. Pretty simple!



> ....and are student of the fine points of the US tax code, but most would rather just find out what works, file their returns, and get on with their lives.


Yes, and that means not spending several pages trying to pretend that "spouse's name" doesn't mean spouse's name. This earth is not flat.

There is(are) no "fine point(s) of the U.S. tax code" when it comes to this issue: spouse's name. One doesn't have to be a Talmudic scholar to understand _this_ part of IRS Form 1040. Unlike your wedding anniversary date perhaps, there is also no research required to ascertain your spouse's name -- no tax preparation software, no spreadsheet software, no trigonometric worksheet.



> I agree it is good to know what the instructions actually say....


Hurray! 

Again, I have no problem if you want to post "The IRS's form says X, but I do Y." The problem I have is when people post that the form says Y when it, in fact, says X. _That's_ b.s.


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## iota2014

BBCWatcher said:


> If you don't want governments asking about the contract you registered with government, then don't register a contract with government, i.e. don't get legally married.


Interesting take on marriage law. Surely even the U.S. tax code doesn't go so far as to declare that anyone who knowingly or unknowingly marries a U.S. Person automatically forfeits privacy rights?


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## BBCWatcher

iota2014 said:


> Surely even the U.S. tax code doesn't go so far as to declare that anyone who knowingly or unknowingly marries a U.S. Person automatically forfeits privacy rights?


_What_ privacy "rights"? If you want a private _relationship_, then don't tell any sovereign about it!

This too isn't complicated. Legal marriage is a specific, _government provided_, contractual package of inseparable rights, privileges, and responsibilities. (It's also romantic and wonderful, or at least hopefully it is. ) If you don't like that deal, then don't enter into it. You are under no obligation to provide any details on your romantic interests to any governments. (Well, at least not to most of them. A few despotic regimes, such as North Korea, might demand to know who your boyfriends and girlfriends are.) But legal, civil marriage is your and your spouse's declaration to a sovereign.

Practically _every_ country asks for your legal spouse's name (and often other details). Solely within my household we have four countries' governments that routinely ask for that particular information, and we only live in one of them. And I'm not counting the ones that ask on landing forms and/or visa applications, even when my spouse is not traveling with me.

What privacy rights here?

Now, as it happens, one of the important rights that legal spouses enjoy under U.S. law is that they (usually) cannot be compelled to testify against their spouses in court. Might that be relevant to matters concerning the IRS? 

....Look, I don't care what you do or don't do, and I don't find this line of discussion particularly interesting. IRS Form 1040 asks for "spouse's name," period -- no question, no debate, no ambiguity. If you want to have a debate about the relationships between individuals and sovereigns -- and how you can simultaneously declare a spouse to a sovereign but selectively withhold that information from sovereigns -- is this really the right forum? It's political, and it's...well, it's not appropriate here, is it? Withoutaclue came here asking about what the IRS requires, and now you've spun off into a debate about disclosing information to a sovereign you've already disclosed to another sovereign? Isn't that a major, unrelated digression? If Withoutaclue or anybody else wants to have a philosophical or political debate, there are plenty of other places to do that.


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## iota2014

BBCWatcher said:


> _What_ privacy "rights"? If you want a private _relationship_, then don't tell any sovereign about it!
> 
> This too isn't complicated. Legal marriage is a specific, _government provided_, contractual package of inseparable rights, privileges, and responsibilities. (It's also romantic and wonderful, or at least hopefully it is. ) If you don't like that deal, then don't enter into it. You are under no obligation to provide any details on your romantic interests to any governments. (Well, at least not to most of them. A few despotic regimes, such as North Korea, might demand to know who your boyfriends and girlfriends are.) But legal, civil marriage is your and your spouse's declaration to a sovereign.
> 
> Practically _every_ country asks for your legal spouse's name (and often other details). Solely within my household we have four countries' governments that routinely ask for that particular information, and we only live in one of them. And I'm not counting the ones that ask on landing forms and/or visa applications, even when my spouse is not traveling with me.
> 
> What privacy rights here?


I think you're wrong, Mr Facts. 

If America has no legal right to tax X, America has no legal right to require that she be identified by name on another person's tax return. Signing a marriage contract can't alter that unless it's spelt out in the contract - you know, in black and white.

And in point of fact, it does seem that the IRS doesn't care what a NRA spouse is called, as long as the US citizen spouse hasn't ticked MFJ.


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## BBCWatcher

iota2014 said:


> If America has no legal right to tax X....


Who said it doesn't?(*) (And who said _that_ matters?) Only a U.S. court, perhaps even the U.S. Supreme Court, gets to review and decide such questions.

If you want to file a lawsuit against the IRS to challenge "spouse's name" on IRS Form 1040, then go for it! I wish you luck, truly.

_As it just so happens_, Edith Windsor challenged the IRS (the United States as the named defendant) on "spouse's name." She filed a lawsuit specifically because she wanted to answer the IRS's "spouse's name" question with two words: "Thea Spyer." Thea was of the same gender as Edith. She viewed that answer as truthful, the Canadian province of Ontario agreed (having married Edith and Thea), but the U.S. government disagreed.(**) The case went all the way up to the U.S. Supreme Court, and in 2013 she won a landmark decision. You can follow in Edith Windsor's footsteps if you wish.

(*) Many, many countries assert extraterritorial/extra-nationality authority of many kinds. Spain, to pick a random example, frequently does in human rights cases (as Spanish judges define "human rights"), issuing arrest warrants for various people with no particular connection to Spain.

(**) Sort of. Unusually, the Solicitor General declined to defend the Defense of Marriage Act at the Supreme Court.


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## Bevdeforges

OK, boys and girls, I think we have (once again) beat this particular dead horse beyond all possible interest.

There are lots of spaces and lines on all the various tax forms that ask for information that most of us leave blank - "daytime phone number" , for instance, on the bottom of the second page of the 1040. (The way the form is set up, it won' t take a foreign format phone number, and I doubt the staff in the US has the authority to call a foreign number anyhow!)

The fact that the instructions say to fill something in doesn't make it law. And US law, in any event, is precedent based, not literally based like, say Napoleonic law. IRS audits are based on the "facts and circumstances" of each case - including an evaluation of the total "points" a particular return or series of returns accumulates. The points are assigned based on various "oddities" that may or may not signal evidence of a problem. Failure to include the name of the spouse may or may not add a point or two to the total, but if the rest of the return is above suspicion, it's seriously unlikely an audit will be conducted based solely on that failing.

But the point has been made (and then beat to death): the instructions say to include the spouse's name. What you do on your forms is between you and the IRS.
Cheers,
Bev


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