Can I claim foreign earned income exclusion for nonresident alien spouse?

Houston Tax Attorney


My wife was in US on a J-1 with 2 year home stay rule and has been in Vietnam since 2015. We elected to treat her as a U.S. resident for 2015 tax purposes – this is a rolling election so it will continue for our 2016 taxes. 

According to IRS Publication 54 (…) we cannot claim that she is not a U.S. resident under any tax treaty: 
“Nonresident Alien Spouse Treated as a Resident 
This means that neither of you can claim under any tax treaty not to be a U.S. resident for a tax year for which the choice is in effect.” 

However, (A) can we still claim a Foreign Earned Income Exclusion for her using the physical presence test? (B) If so, and she ends up with no taxable income for 2016, can I still contribute $5,500 to her 2016 Roth IRA as long as we meet all other criteria (joint income limits, my income being >$11,000 per year, etc.)? 

Thank you!

It sounds like you made a 6013(g) election for your spouse. If so then she is a resident for tax purposes. Short answer is yes to (A). Not sure about (B) without additional facts.

-Law Office of Kunal Patel, LLC


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