Under the Internal Revenue Code (IRC) Section 6013(g), an election may be made to treat a nonresident alien individual as a resident of the United States if two individuals are husband and wife at the close of the taxable year, and one of the spouses is a citizen or resident of the U.S.
For tax purposes, this treats each spouse as a resident of the U.S. for that taxable year and all subsequent years except in taxable years that this election is either suspended or terminated.
Automatic revocation of the election comes into effect during the subsequent year of the first taxable year the election was made if both spouse are nonresidents for the entire taxable year.
This also applies in the event one spouse dies during the period of a taxable year when neither spouse was considered a resident. The surviving spouse can not file a joint tax return.
6013(g) vs 6013(h)
An IRC Section 6013(g) election should not be confused with IRC Section 6013(h) election where the nonresident alien becomes a resident at the end of the taxable year but elections to be treated as a resident at the beginning of the taxable year.
Termination of filing a joint tax return
Termination of filing a joint tax return for a taxable year and the subsequent years can be broken down as follows:
- Revocation
- Death
- Legal separation
- Inadequate records
Revocation
Either spouse can terminate the IRC Section 6013(g) election by filing a revocation in writing that contains the name, address, and tax identification number of each spouse. The revocation statement must also include a list of each State and foreign country with community property laws in which each spouse is domiciled or tangible property in which either spouse derives income.
Death
If either spouse dies, it shall terminate the election for filing a joint tax return. However, if the surviving spouse is entitled to specific benefits, than the election terminates the first day of the taxable year following the final taxable year the surviving spouse is entitled to those benefits.
Legal separation
If the spouses legally separate under a degree of divorce, the IRC Section 6013(g) election is terminated at the close of the taxable year preceding the legal separation and neither spouse files a joint return.
Inadequate records
The Commissioner can terminate IRC Section 6013(g) election, if it is determined that adequate records for ascertaining tax liabilities is not maintained. In this scenario, the spouses cannot file jointly for that taxable year.
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