6013(g) Election for Foreign Spouses: While the IRS requires U.S. Persons to report their worldwide income, assets and accounts on their annual tax return, the same is not required for Foreign Spouses. If a Foreign Spouse does not have any U.S. Income, then under most circumstances, they would not have any tax return requirement. But, if a U.S. Person has a foreign spouse, they may wish to include the foreign spouse in their U,S. tax return. This is especially true if the foreign spouse has no income (or has foreign tax credits to offset). That way, the spouses can file as Married Filing Jointly, and receive the (under most circumstances) a reduced tax liability. This can be accomplished with the 6013(g) election.
We will summarize the 6013(g) Election for Foreign Spouses:
What is a 6013(g) Election
Let’s talk a walk through the code section and regulations:
“26 U.S. Code § 6013: Joint Returns of Income Tax by Husband and Wife
(a) Joint returns
A husband and wife may make a single return jointly of income taxes under subtitle A, even though one of the spouses has neither gross income nor deductions, except as provided below:
(1) no joint return shall be made if either the husband or wife at any time during the taxable year is a nonresident alien;
(g) Election to treat nonresident alien individual as resident of the United States
(1) In general
A nonresident alien individual with respect to whom this subsection is in effect for the taxable year shall be treated as a resident of the United States—
(A) for purposes of chapter 1 for all of such taxable year, and
(B) for purposes of chapter 24 (relating to wage withholding) for payments of wages made during such taxable year.
(2) Individuals with respect to whom this subsection is in effect
This subsection shall be in effect with respect to any individual who, at the close of the taxable year for which an election under this subsection was made, was a nonresident alien individual married to a citizen or resident of the United States, if both of them made such election to have the benefits of this subsection apply to them.
(3) Duration of Election
An election under this subsection shall apply to the taxable year for which made and to all subsequent taxable years until terminated under paragraph (4) or (5); except that any such election shall not apply for any taxable year if neither spouse is a citizen or resident of the United States at any time during such year.
(4) Termination of election
An election under this subsection shall terminate at the earliest of the following times:
(A) Revocation by taxpayers If either taxpayer revokes the election, as of the first taxable year for which the last day prescribed by law for filing the return of tax under chapter 1 has not yet occurred.
(B) Death In the case of the death of either spouse, as of the beginning of the first taxable year of the spouse who survives following the taxable year in which such death occurred; except that if the spouse who survives is a citizen or resident of the United States who is a surviving spouse entitled to the benefits of section 2, the time provided by this subparagraph shall be as of the close of the last taxable year for which such individual is entitled to the benefits of section 2.
(C) Legal separation In the case of the legal separation of the couple under a decree of divorce or of separate maintenance, as of the beginning of the taxable year in which such legal separation occurs.
(D) Termination by Secretary At the time provided in paragraph (5).
(5) Termination by Secretary
The Secretary may terminate any election under this subsection for any taxable year if he determines that either spouse has failed—
(A) to keep such books and records,
(B) to grant such access to such books and records, or
(C) to supply such other information, as may be reasonably necessary to ascertain the amount of liability for taxes under chapter 1 of either spouse for such taxable year.
(6) Only one election
If any election under this subsection for any two individuals is terminated under paragraph (4) or (5) for any taxable year, such two individuals shall be ineligible to make an election under this subsection for any subsequent taxable year.”
How to Make a 6013(g) Election
In order to make the 6013(g) election, the individual must follow the procedures of 26 CFR § 1.6013-6:
IRS Treasury Regulation 26 CFR § 1.6013-6
Section 4 of the Treasury Regulation details the submission procedures:
“(4) Time and manner of making an election.
(i) A husband and wife shall make the election under this section by attaching a statement to a joint return for the first taxable year for which the election is to be in effect.
The election must be made before the expiration of the period prescribed by section 6511(a) (or section 6511(c) if the period is extended by agreement) for making a claim for credit or refund.
If either or both spouses die after the close of the taxable year but before the joint return is filed, the election may be made by the executor, administrator, or other person charged with the property of the deceased spouse.
If the election is made with a joint amended return, the amended return should be made on Form 1040 or 1040A, the word “Amended” should be written clearly on the front of the return, and an amended return also must be filed for each subsequent taxable year as to which a return previously has been filed by either spouse.
(ii) The statement must contain a declaration that the election is being made and that the requirements of paragraph (a)(1) of this section are met for the taxable year.
The statement must also contain the name, address, and taxpayer identifying number of each spouse.
If the election is being made on behalf of a deceased spouse, the statement must contain the name and address of the executor, administrator, or other person making the election on behalf of the decreased spouse.
The statement must be signed by both persons making the election.”
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