Legal ruling 1995-1

Head of Household Filing Status Nonresident Alien, Nonresident Alien Spouse

Issue

Does California conform to federal provisions regarding the determination of federal head of household filing status where one or both spouses are nonresident aliens?

Facts

Situation 1: H and W are married and live together in California during all of Year 1. H maintains H and W's home as a household that constitutes for more than one-half of the taxable year the principal place of abode of H's dependent mother as a member of H and W's household. H is not a nonresident alien at any time during Year 1. W is a nonresident alien during all of Year 1. H and W do not elect to treat W as a resident and do not file joint returns under Internal Revenue Code § 6013(g) or (h).

Situation 2: Same as Situation 1 except that W is a nonresident alien from January through May of Year 1 and a resident alien from June through December of Year 1.

Situation 3: Same as Situation 1 except H is a nonresident alien from January through May of Year 1.

Law and Analysis

Under federal law (Internal Revenue Code (IRC) § 6013(a)(1)), no joint return may be made if at any time during the year either spouse was a nonresident alien. However, if one of the spouses was a resident at the end of the year and both spouses elect to treat the nonresident spouse as a resident, a joint return may be filed. (IRC § 6013(g) and (h).)

For taxpayers who could elect to file a joint return but choose not to make such election, one of the taxpayers may qualify to file a return using head of household filing status. IRC § 2(b)(2)(C) provides that a married taxpayer is considered to be unmarried for head of household filing purposes if at any time during the taxable year his [or her] spouse is a nonresident alien. (Rev. Rul. 55-711, 1955-2 CB 13, amplified by Rev. Rul. 74-370, 1974-2 CB 7.) Under IRC § 2(b)(3)(A), if an individual was a nonresident alien at any time during the taxable year, the individual may not be considered to be a head of household.

In 1987, AB 53 (Stats. 1987, Ch. 1138) was enacted, specifically providing that an individual must use the same filing status on the individual's California return as used on the individual's federal return, with certain specified exceptions that are not applicable here. (Rev. & Tax. Code § 18521 (formerly § 18402; formerly § 17043).)

Rev. & Tax. Code § 17024.5(b)(11) provides that unless otherwise specifically provided, when applying any section of the IRC for California purposes, any provision that refers to nonresident aliens shall not be applicable. The specific requirement of Rev. & Tax. Code § 18521 that a taxpayer use the same filing status on a California return as used on the taxpayer's federal return, is a specific exception to the Rev. & Tax. Code § 17024.5(b)(11) general rule concerning federal nonresident alien provisions. Therefore, California follows federal law regarding head of household filing status, and the IRC provisions regarding nonresident aliens are applicable in determining eligibility for California head of household filing status.

Holdings

California conforms to federal provisions regarding the determination of federal head of household filing status where one or both spouses are nonresident aliens.

Situation 1: H is considered unmarried for head of household purposes because W is a nonresident alien. Accordingly, H qualifies for head of household filing status for federal and California purposes. W does not qualify for head of household filing status because W is a nonresident alien. W must file a separate return using married filing separate status when filing a California return.

Situation 2: H is considered unmarried for head of household purposes, and, thus, qualifies for head of household filing status for federal and California purposes. W does not qualify for head of household filing status because she was a nonresident alien during part of the year. Because H and W did not elect to treat W as a resident, W must file a separate return using married filing separate status.

Situation 3: Because H was a nonresident alien for a portion of Year 1, H does not qualify for head of household status, and, accordingly, H may not be considered unmarried by virtue of W's nonresident alien status. W does not qualify for head of household status because W is a nonresident alien. Because H and W did not elect to treat W as a resident, H and W must file separate returns using married filing separate status.

Drafting Information

The principal author of this notice is Lynn Toliver of the Franchise Tax Board Legal Division. For further information regarding this notice, contact Ms. Toliver at the Franchise Tax Board Legal Division, P.O. Box 1468, Sacramento, CA 95812-1468.

NOTE: ((---)) = Indicates obsolete information.