john09_2013

hello,
a friend of mine who is a us citizen got married to a french citizen but she hasnt moved into the US yet 'still waiting for green card by nxt year'...he is filing as joint with her, and using also form 2555 'Foreign Earned Income' for her....
my question does she need to do the FBAR stuff since she is not US resident yet but her husband will be filing jointly?

tom169

Cannot file jointly when one is non resident and the other resident - both would have to be (treated) residents.

As the person isn't even in the USA yet and doesn't have an SSN, would be easier to go married filing separately for the US citizen only. May not even have the ability to elect without being in the USA.

If the US citizen has signatory over the foreign accounts then the FBAR would apply in this case.

There may be other circumstances so would make it wise to seek CPA advice.

Also, get them to sign up for an account here

civilservant

Yep time to see a CPA on this one - I don't think filing jointly is an option when the non-resident is without and SSN or ITIN.

Certainly if he has any control of the French bank accounts then FBAR is in play.

Why would he want to file jointly anyway? Sounds like he just wants to claim her deduction and get more taxes back.

theOAP

A US citizen certainly can include an NRA spouse on a tax return filed as 'married joint'. An attachment must be made for the first year of filing stating the wish for the NRA to be included. See Publication 54. A separate application for a TIN must also be made for the NRA spouse, and this can take some time and I believe it must be done through certain channels.

An FBAR is filed with the Treasury. The IRS acts only as the facilitator. Treasury regulations (I believe) would not require the NRA spouse to file a separate FBAR on individual accounts that spouse holds offshore, although any joint accounts held by the US citizen and the NRA spouse must be included on the US citizens FBAR report when they are offshore accounts.

When an NRA spouse consents to be included on a 'married filing jointly' US return they also automatically consent to submit to all IRS rules as if they were a US citizen. Since Form 8938 is an IRS form, if the threshold is met, all of the NRA spouses offshore accounts must be included on the 8938 even if they are the spouses individual accounts.

The only time it would make sense to file jointly would be if the NRA spouse had no or little world wide income. But, due to the requirements of an NRA filing as such, it is not normal practice.

john09_2013

Thanks guys,

she does have a french income & SSN 'she used to work in US years ago, that is how they met and got married later on'...but she spent only few days in US in 2018

tom169

That makes things easier. Still, probably a lot more effort than it's worth.

When the attachment is included the NRA spouse isn't treated as NRA anymore and by all accounts from that year onwards until they're told again. It can open up a rabbit hole of problems.