ITIN for British spouse

I file 'married filing separately', and have always put 'NRA' where it asks for my husband's SSN. However, recently I have been reading conflicting information regarding ITINs (Individual Taxpayer Identification Number) for foreign spouses. Some people have been receiving information from the IRS that indicates 'NRA' is no longer acceptable, and forms without ITINs for foreign spouses will be rejected.

My husband is more or less refusing to apply for an ITIN, and I have to admit I support him 100%. This is a completely and utterly ridiculous requirement, and I am honestly having a hard time believing this can be legal.

All the posts on this site regarding ITINs are quite old... and this seems to be a relatively new requirement. What is the consensus among the experts here?

I guess the question is why are you saying you are "married but filing separately" to the IRS?  Are you trying to claim any exemptions?  I am assuming you husband has never worked in the US and therefore the IRS would have no need to be aware of him.  If you just filed as single, then you wouldn't even have to be askd that question...  But I am sure the others have better ideas then that.

oh, it hadn't even occured to me that I could still file single. Can anyone advise regarding the legality of doing this? I am quite definitely married, so it would be a lie. While I may have to resort to not filing at all if they are going to enforce this ITIN thing (I don't owe them anything anyways), I still hesitate to lie outright to the IRS!

I don't claim my husband as an exemption, and I DO know he would definitely require an ITIN if I did, anyways.

Anyone? Anyone? What do all of you married people do?

From the IRS publication 501:

Nonresident alien spouse.   You are considered unmarried for head of household purposes if your spouse was a nonresident alien at any time during the year and you do not choose to treat your nonresident spouse as a resident alien. However, your spouse is not a qualifying person for head of household purposes. You must have another qualifying person and meet the other tests to be eligible to file as a head of household.

From: http://www.irs.gov/publications/p501/ar02.html#d0e2239

So basically you should officially claim yourself unmarried to the IRS.  When you are claiming married but filing seperatly, they are assuming your spouse is a resident alien, or a non-resident alien who has a filing requirement.

Your husband may need to get an ITIN if you start claiming tax treaty refunds based on your marriage.  That gets into more of a sticky situation where I am sure Guya or Lizzit will be able to help out.

oh. wow. Thanks, kitsonk...that does help.

Can I just go ahead and file single this time, even though I've filed as married for the past two years? Or is there yet another form for declaring yourself officially unmarried?

I also did not know that you were allowed to file as single even though you are married to someone from another country. I also listed my husband as non-resident alien last year.

My husband is the beneficiary of my 401K and my US defined benefit pension plan, so I know that he is going to have to get a TIN number if he outlives me. Since I've already stated that he is my spouse for the purpose of making him my beneficiary, I thought it would seem odd to claim that I am single on my tax returns. I also have to declare our joint UK bank account account to the Treasury as we have had more than $10,000 in it during the year.

From the IRS publication 501:

From: http://www.irs.gov/publications/p501/ar02.html#d0e2239

So basically you should officially claim yourself unmarried to the IRS.  When you are claiming married but filing seperatly, they are assuming your spouse is a resident alien, or a non-resident alien who has a filing requirement.

This is not correct.  The IRS allows an exception to those with children and married to a NRA, which is to be able to file HOH (which is normally reserved for unmarried persons).  This does not translate to -- you can file single, if you are married.

If you are indeed married to a NRA, and you are not filing HOH, you cannot file single.

Sara is correct; single is not allowed for married persons.

Your choices are:
Married Filing Jointly (not advised in general, but still an option), Head of Household, or Married Filing Separately. 

...all of which now require an ITIN for your NRA spouse?

I have not seen this from the IRS unless you are claiming an exemption for the NRA spouse. Some States (eg New York) reject MFS returns if the spouse SSN is left blank, but all you have to do there is write "NRA" in the space for spouse SSN.

ok, thanks, guya. On another forum that I use (which will remain nameless), there are a number of people swearing up and down that as of this year, all forms WILL be rejected that do not display an ITIN for NRA spouses. I was just wondering what the opinion was on this forum.

As my husband is not happy supplying his information to the US government, I will continue to file using 'NRA' until I am told otherwise. And if that happens, I don't know what I'll do...not file? 

ok, thanks, guya. On another forum that I use (which will remain nameless), there are a number of people swearing up and down that as of this year, all forms WILL be rejected that do not display an ITIN for NRA spouses.

For some reason, I assumed that darksquid meant that she'd received a notice from the IRS that she had to get an ITIN, not that she'd read it on a forum. Darksquid, did those forum people ever reveal the source of their information?

Never mind, I will continue to report as married filing separately, with my husband as non-resident alien. I didn't see how I could claim to be single, if my husband is my beneficiary for pensions and social security.

Ok, I'm not sure if I'm allowed to quote directly from another forum, and mods, please feel free to delete if you feel it's necessary.

Sweetpeach, no, this wasn't direct information. If it had come straight to me from the horse's mouth, I wouldn't be questioning it! This was the post that got me worried. There are others on this forum that do not agree with this person, but it certainly sounds as if she has tried to do her homework:

For clarification, I just got off the phone with the head of the IRS for one of the offices in Florida.  She directed to the IRS website and re-iterated this verbatim!
 
How do I know if I need an ITIN?
If you do not have an SSN and are not eligible to obtain an SSN, but you have a requirement to furnish a federal tax identification number or file a federal income tax return, you must apply for an ITIN. By law, an alien individual cannot have both an ITIN and an SSN.
IRS processes returns showing SSNs or ITINs in the blanks where tax forms request SSNs. IRS no longer accepts, and will not process, forms showing "SSA205c," "applied for," "NRA," blanks, etc. http://www.irs.gov/individuals/article/0,,id=96287,00.html
 
Her exact words were "If the form requires the SSN, as the married filing separately form does, then an ITIN is required or the return will be rejected."
 
I then called 6 other offices (across the US) much to my phone bill dismay, and all verified this information!

I would like to point out that it says for those "required to file".  Your husband is not required to file.  You are simply fulfilling your obligation to file and reporting that your spouse is an NRA.  Especially since you are not claiming any benefit by your relationship to your spouse, I don't see how the IRS could require an ITIN.

In fact, to the point, I used Archive.org to view the page as it was in 2002: http://web.archive.org/web/20021007163452/http://www.irs.gov/individuals/article/0,,id=96287,00.html

As you can see they have been saying this for years, and if you have been filing and reporting your spouse as NRA, then the IRS has been not following their own policy for years.  Obviously they are referring to the person the return is about, not all people identified on the form!

ok, thanks, guya. On another forum that I use (which will remain nameless), there are a number of people swearing up and down that as of this year, all forms WILL be rejected that do not display an ITIN for NRA spouses. I was just wondering what the opinion was on this forum.

I spoke to the IRS in the London Consulate last month and they said that all I needed to put on my taxes was that my husband was NRA.  They said even though he has a SSN (from working in the states previously) all you need to put on there is NRA and omit the SSN...  They never mentioned an ITIN when I asked them regarding taxes and forms.  I'd say don't worry about it, but that's just my two cents, otherwise contact the IRS in the US Consulate in London for a definitive answer:  http://www.usembassy.org.uk/irs/index.htm. 

Darksquid - in regards to that quote where the person spoke to the IRS in Florida - I would in all honesty discredit that.  I'm not trying to cause argument, but in complete and total honesty - I wouldn't listen to an IRS department within the US based on filing taxes from abroad.  That's why I personally called the IRS department at the Consulate, seeing as they are working and living over here themselves they would be more up to date on the correct procedures than a tax office within the US.  Also, the IRS themselves (on any of their forms) tell you to contact either the Consulate in London or Germany if you are living in the UK or Europe... 

Good luck to you & everyone else filing!