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  1. #1

    Default How to File Taxes if Your Spouse is Undocumented and Works Illegally

    I am a US Citizen married in 2011 to an undocumented immigrant. I have been trying to figure out how to file my 2011 taxes the entire year (fyi-I got an extension and do not owe taxes). I understand that we will need to get my spouse an ITIN number. However everyone I talk to says that in order to do that my spouse will need to file taxes. That seems like a crazy catch 22 to me and I know I must be missing a piece of the puzzle. We tried to file married-separate at the time of sending in the ITIN application but it was rejected. Full disclaimer-my spouse is working under an made up ssn. I just want to do right by the IRS and not break any tax laws but am extremely confused about how to get an ITIN. Should we file his tax return with the made up ssn or will that open up a can of worms? Any advice would be extremely appreciated

  2. #2
    Join Date
    Apr 2009
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    Somewhere near Canada
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    Default Re: Married to and Undocumented Immigrant Itin

    NO! That would be incredibly foolish.

    As it is, your spouse has legal problems.

    Have you spoken with an immigration attorney?

  3. #3

    Default Re: Married to and Undocumented Immigrant Itin

    Yes, we have an immigration attorney but they've been unable to help with the tax questions since it seems there is no officially 'legal' answer. We have begun the immigration process (filed the I-130 Petition for Alien Relative) . It's a waiting game at this point that could take a couple of years. In the meantime I have no idea how to file my taxes

  4. #4
    Join Date
    Oct 2006
    Posts
    16,474

    Default Re: How to File Taxes if Your Spouse is Undocumented and Works Illegally

    Quote Quoting soconfused1111
    View Post
    I am a US Citizen married in 2011 to an undocumented immigrant. I have been trying to figure out how to file my 2011 taxes the entire year (fyi-I got an extension and do not owe taxes). I understand that we will need to get my spouse an ITIN number. However everyone I talk to says that in order to do that my spouse will need to file taxes. That seems like a crazy catch 22 to me and I know I must be missing a piece of the puzzle. We tried to file married-separate at the time of sending in the ITIN application but it was rejected. Full disclaimer-my spouse is working under an made up ssn. I just want to do right by the IRS and not break any tax laws but am extremely confused about how to get an ITIN. Should we file his tax return with the made up ssn or will that open up a can of worms? Any advice would be extremely appreciated
    This is how it works. You do a paper tax return with no social security number listed for your spouse. You will not be eligible for any refundable credits such as EIC or the American Opportunity Credit. You send in the paper return, along with an ITIN application for your husband and ORIGINAL (this is a temporary situation where originals are required) identification (usually an unexpired passport, but a voters ID and a birth certificate can be used, they will be returned to you). Attach the W2s (even the one with the fake SSN) to the tax return.

    You mail the return, ITIN application and identification to: Internal Revenue Service, ITIN Operation, Mail Stop 6090-AUSC, 3651 South Interregional HWY 35, Austin TX 78741-0000.

    The ITIN application will be processed first, and then the whole bundle will be sent on for processing the tax return. Expect it to take about 6 months total for processing.

  5. #5
    Join Date
    Jul 2007
    Location
    Florida
    Posts
    2,344

    Default Re: How to File Taxes if Your Spouse is Undocumented and Works Illegally

    The Additional Child Tax Credit (Form 8812) is a refundable credit that is available to illegal immigrants.

    The IRS will only issue an ITIN in conjunction with a tax filing. There is no way to apply for one any other way. That is because its only purpose is for use in filing tax returns.

  6. #6

    Default Re: How to File Taxes if Your Spouse is Undocumented and Works Illegally

    I'm not worried about credits or refunds or anything (even if I dont get the actual refund I deserve I'm ok with that). I just want to do this the most legal way possible (which I realize is hard since my spouse is already working illegally.) I understand an ITIN is only to file taxes but say I was married to someone living in france who had never come here and I still had to file taxes , as married, because i'm living and working here. My spouse wouldnt have any W2s to file in order to get an ITIN, yet I would still need that ITIN to file my taxes. That is the part I'm just not understanding.
    -Isnt it going to get me in a lot of trouble if I file our taxes with my spouses W2 that has a fake SSN? Or does the IRS overlook this?
    -My acct recommended that we file our taxes together using a 1099 for my spouse claiming some selfemployed income (cause then we wouldnt have to use a SSN) and hopefully get an ITIN in that process.
    Is there a lesser of two evils with the above options?

    I really appreciate the advice

  7. #7
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,273

    Default Re: How to File Taxes if Your Spouse is Undocumented and Works Illegally

    File married but separate is an option? Or filing single? Is it required that you file married if you are married?

    1-800-829-1040 is the IRS line....

  8. #8
    Join Date
    Oct 2006
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    16,474

    Default Re: How to File Taxes if Your Spouse is Undocumented and Works Illegally

    Quote Quoting soconfused1111
    View Post
    I'm not worried about credits or refunds or anything (even if I dont get the actual refund I deserve I'm ok with that). I just want to do this the most legal way possible (which I realize is hard since my spouse is already working illegally.) I understand an ITIN is only to file taxes but say I was married to someone living in france who had never come here and I still had to file taxes , as married, because i'm living and working here. My spouse wouldnt have any W2s to file in order to get an ITIN, yet I would still need that ITIN to file my taxes. That is the part I'm just not understanding.
    -Isnt it going to get me in a lot of trouble if I file our taxes with my spouses W2 that has a fake SSN? Or does the IRS overlook this?
    -My acct recommended that we file our taxes together using a 1099 for my spouse claiming some selfemployed income (cause then we wouldnt have to use a SSN) and hopefully get an ITIN in that process.
    Is there a lesser of two evils with the above options?

    I really appreciate the advice
    Re the bolded, the IRS overlooks that. They set up the entire ITIN system actually designed to overlook that. The suggestion of using a fake 1099 is incredibly stupid. Do it the right way, which I completely outlined for you in one of my previous posts.

  9. #9
    Join Date
    Jul 2007
    Location
    Florida
    Posts
    2,344

    Default Re: How to File Taxes if Your Spouse is Undocumented and Works Illegally

    The IRS is chartered to administer the tax code, Title 26 of the USC. It is not given the responsibility or obligation to enforce immigration laws, and it does not do so.

    I have a client who is a citizen of the United Kingdom. She owns property in the U.S. which she rents out. She derives income from the U.S. and therefore is required to file a U.S. tax return. In order to comply with U.S. tax law, she had to apply for an ITIN. The only way a person can apply for an ITIN is in conjunction with the filing of a tax return. Having an ITIN does not have anything to do with being legal or illegal. My client is perfectly legal in owning property here and renting it.

    If you wish to file using the filing status Married Filing Separately then your spouse has no need to apply for an ITIN. You will have to file on paper because the IRS will not accept a MFS return electronically without and identifying number for the non-filing spouse, who still has to be identified.

    Regarding the 1099 issue, either a person is an employee or they are a self-employed independent contractor. If a company will not issue a W-2 then presumably the person is self-employed, but that is no more legal than a W-2 for someone in the country illegally. The legal status of the worker is not a concern to the IRS. Obeying the tax laws is what they care about.

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