tax filing status

I am a US citizen and my husband is British (married in 2006). The past 5 years I have been filing my taxes as Single.

The 1040 Tax form asks for the spouse's SSN if filing married but separately. Since, my husband does not have a SSN and since he has never worked or lived in the US, he wouldn't be filing a US tax return. Therefore, spouse is not filing separately. This is why I went with the logic of Single.

The instruction book says under Single that you "can" check the box if you were never married on the last day of that tax year. It doesn't specifically say that you "must" or "only can".

Under the Married section it says you "can" check if any of the following apply (ie married at the end of the tax year)... But it does not say that you "must".

After seeing a few posts where many like me who have a British spouse are filing under Married. I've also seen it mentioned that you can enter NRA when the spouse does not have and is not required to have a SSN for filing separately.

Now I'm wondering if I have uninterrupted the filing status and that I've been filing incorrectly?

I file under my maiden name as I haven't changed my SSN to my married name yet. All my financial accounts are under my married name, which I enter in the 90221 form (Report of Foreign Bank & Financial Accounts). I haven't had to pay any taxes under the Foreign Earned Income Exclusion (2555-ez).

Am I required to file under Married or am I ok to continue to file under single? If I need to file under Married, do I need to file a correction to my previous tax returns?

You should have been filing married filing separately. As you wouldn't owe tax in either scenario, it may not make sense for you to amend. Equally since it is only an informational amendment, you may just bite the bullet and amend.

Ditto, butterfinger! I've been doing the same thing simply so I could e-file and keep it simple. I've been using the same logic as you!  But this logic is flawed. If the instruction booklet says under Single that you "can" check the box if you weren't married on the last day of that tax year, then the converse would also have to be true - that if you were married, you cannot check the "Single status" box.  Likewise under Married, if it says you "can" check the box if you were married at the end of the tax year, then again, the converse would have to be true - that if you weren't married, you cannot check the "Married status" box.

I know it's a lot easier to rationalize our way around it then to own up to what we actually need to do. Now, in my case, my filing status has no bearing on my tax liability so tax evasion is not a question but that is the one thing you do not want the IRS to think you're trying to do.  When we submit our tax forms, we are in essence signing an affidavit stating that our selected filing status is true and correct.  

Now, I haven't changed my surname since getting married and I don't intend to.  But I think as soon as you do, that puts them (the IRS) on notice that your filing status has possibly changed. If your tax liability would change as a result of your using the correct filing status, then yes, I would think good and hard about amending your past years returns.  I wouldn't think you'd have to amend them beyond the statute of limitations which I think is now three years for audits? That would have to be checked.

As I'm looking into the possibilities of getting a Green Card for my British hubby to stay with me in the States when I go back, I could be in trouble if I have to produce the past couple of years tax returns simply because I filed as Single - so if you think you would ever need to produce your tax returns for any official business, it's always best to have told the truth.  

As long as you file as Married filing Separately (even though your spouse is technically not filing) then you don't have to account for his income, his assets or anything else of his.  The income tax return, in that case is only about you. If you decide at some point to file as Married filing Jointly, then his income and assets become your "worldwide" income and assets and they have to be accounted for on the tax return, in essence combined with yours.  Some couples prefer to file jointly as it can work out to have an advantage - paying less taxes. But that's not always the case.  It can sometimes be fun to figure it out both ways before you actually file just to see if there is an advantage to you one way or the other.  

About the NRA thing - there seems to be conflicting advice on this forum.  If you're trying to fill in the 1040/1040A online, I highly suspect that it won't let you type "NRA" in the form field for SSN because that form field is specifically created for a numerical input.  I hope somebody who has had some experience with this will correct me.  However, I thought about trying to type Non Resident Alien or NRA in the field where the spouse's name is requested.  And, I think somewhere on this forum someone suggested that you don't have to put anything at all.. don't even mention your spouse.  

The advantage of filing your taxes online is that if you make a mistake or don't fill something in properly, the form is kicked back to you inside an hour and you have time to correct and submit it again, several times if you need to. If you are mailing your taxes by "snail-mail" and you've not filled in something correctly.. ie, maybe you decided to put "NRA" and they refused to accept it the way that you wrote it, you might not find out and have a chance to correct and resubmit it in time. That's worrisome.

But to reiterate:  Yes, you and I should be filing as Married filing Separately - not Single.  I thought life would be less expensive and less complicated when I moved to the UK, but the very opposite has proved true.  It's a bugger!  

You type in NRA into the spouse ssn field. You won't be allowed to efile.

Thanks for the replies!

Sky, did you do any amendments when you filed under single?

On the FBAR forms (including previous years), I've put Spouse next to my husband's name (most of our accounts are joint), so it shouldn't look like I was purposely hiding being married.

With regards to filing status - if you're married as of the last day of the tax year, you cannot file as single*; if you're single as of that date (with the exception of your spouse dying during the year) you cannot file as married (MFJ or MFS). Note that there are some cases where someone married can file as head of household; for those living abroad the main one being if you have a NRA spouse and you have children or other qualifying dependents (your spouse or partner doesn't count).

*A big exception as of right now is that since the feds don't recognize same-sex marriages or other unions, is if you're in such a marriage or civil union you'd file as if you were single. With the Supreme Court case challenging the DOMA coming up that could change if the law is struck down.

You type in NRA into the spouse ssn field. You won't be allowed to efile.

Well yes. If I want to e-file then this is the complication, innit.  

. . .Sky, did you do any amendments when you filed under single? On the FBAR forms (including previous years), I've put Spouse next to my husband's name (most of our accounts are joint), so it shouldn't look like I was purposely hiding being married.

Not sure what you mean by "amendments" but I think my answer to that is "no".  I very deliberately left my bank accounts in USA so I could avoid the whole FBAR thing and the extra form 8938, and so I could truthfully answer "no" on Schedule B with regards to foreign accounts.  I like to fly under the radar.  

...*A big exception as of right now is that since the feds don't recognize same-sex marriages or other unions, is if you're in such a marriage or civil union you'd file as if you were single. With the Supreme Court case challenging the DOMA coming up that could change if the law is struck down.

Hmm.. well, I guess that settles it. If I want to file as Single, I'll have to undergo a gender transition.  

Hmm.. well, I guess that settles it. If I want to file as Single, I'll have to undergo a gender transition.  

In your case that probably wouldn't work...from a case or two of transgender people I've heard is that as far as the feds are concerned if the marriage was legal (i.e. heterosexual) at the time it was entered into it remains legal, even if one of the partners gets a sex change. (If you thought that gay marriage is confusing, it gets even more so when you have different interpretations as to what constitutes one's "legal" gender. However, the basis that a once-heterosexual marriage remains intact stems that under ordinary circumstances a valid marriage can only be terminated by divorce or death of one of the members; this is also one of the arguments against California's Proposition 8 which nullified marriages that were legal during the short time that gay marriage was legal in CA.)

Nearly freaked out about form 8938. Didn't even know about that. Luckily it doesn't apply to me.

Taxpayers living abroad.  You are a taxpayer living abroad if:

You are a U.S. citizen whose tax home is in a foreign country and you are either a bona fide resident of a foreign country or countries for an uninterrupted period that includes the entire tax year, or
You are a US citizen or resident, who during a period of 12 consecutive months ending in the tax year is physically present in a foreign country or countries at least 330 days.
If you are a taxpayer living abroad you must file if:
You are filing a return other than a joint return and the total value of your specified foreign assets is more than $200,000 on the last day of the tax year or more than $300,000 at any time during the year; or
You are filing a joint return and the value of your specified foreign asset is more than $400,000 on the last day of the tax year or more than $600,000 at any time during the year.