Summary

“Head of Household” filing status is desirable–it can save you some tax.

Proving you qualify for head of household status is not easy.

Among other things, head of household filing status is for unmarried taxpayers only.

But it is possible for U.S. citizens (or resident aliens) who are married to nonresident aliens to qualify for head of household filing status. All you need is to maintain a household, and a dependent who is not the nonresident alien spouse.

The Requirements

The requirements for claiming head of household status are:

  1. Be unmarried at the close of the tax year.2
  2. Not be a surviving spouse.3
  3. Not be a nonresident alien at any time during the tax year.4
  4. Maintain a household in one of two ways.5

1. Unmarried Includes Married Taxpayers

Head of household filing status is available to unmarried taxpayers only:6

[A]n individual shall be considered a head of a household if, and only if, such individual is not married at the close of his taxable year . . . .6

“Married” has the meaning specified in IRC §7703(b).7

As usual in tax law, words do not always mean what you think they mean. Married people can be unmarried:

[A] taxpayer shall be considered as not married at the close of his taxable year if at any time during the taxable year his spouse is a nonresident alien[.]8

This means that a U.S. citizen or resident alien, married to a nonresident alien in real life, is “unmarried” for head of household filing status.

Example

You are a married U.S. citizen or resident alien.

Your spouse is a nonresident alien on January 1, 2016 and remains a nonresident alien for the entire calendar year of 2016.

Because your spouse was a nonresident alien at least momentarily (in fact, the entire year under my facts), you are considered unmarried at the close of your tax year (December 31).

You qualify for head of household status.

Head of household status is available to a U.S. citizen or resident alien where the nonresident alien spouse becomes a U.S. resident during the year.

Example

You are a married U.S. citizen or resident alien.

Your spouse is a nonresident alien on January 1, 2016. On October 1, 2016, your spouse received a green card.

Your spouse is now a resident alien, effective (for the sake of this example) as of October 1, 2016.

Because your spouse was a nonresident alien from January 1, 2016 through September 30, 2016, you are considered unmarried at the close of your tax year (December 31).

You qualify for head of household status.

2. Not be a Surviving Spouse

For this discussion, I will skip over the second requirement–the person claiming head of household status cannot be a surviving spouse. I will assume that both spouses were alive all year.

3. Not a Nonresident Alien

Head of household filing status is not available for someone who was a nonresident alien at any time during the tax year.9

Other Required Elements of Head of Household Status

A married U.S. citizen can be treated as “unmarried” and therefore qualify for head of household filing status. But that is not enough. There are other requirements to be satisfied if you want to claim head of household filing status.

4. “Maintain a Household”

The final requirement for being a head of household is that you actually, y’know, need to have a household. There are two ways to do this.

Two Ways to Maintain a Household

In order to qualify for head of household status, you need to satisfy one of these requirements:

  • [Maintain] as the taxpayer’s home a household that is for more than one-half of the taxable year the principal place of abode of a qualifying child or dependent of the taxpayer, within the meaning of [Prop. Reg. §1.2-2(b)(2)], who is a member of the taxpayer’s household during that period;10 or
  • [Maintain] a household, whether or not the taxpayer’s home, that is for the taxable year the principal place of abode of a parent of the taxpayer, within the meaning of [Prop. Reg. §1.2-2(b)(3)].

Your Own Household

Maintaining your own household is the first way to qualify for head of household status. You need to maintain the household for more than half of the year. But the important requirement for our purposes is that you need a “qualifying child” or “dependent” as a member of the household.

A nonresident alien spouse will not qualify as a dependent for purposes of creating your “household”. You will need a different person to be the qualifying person.

Example

You are a U.S. citizen or resident alien, married to a nonresident alien. You maintain a home where you and your spouse live. You have no children or other dependents.

You are not eligible for head of household status.

  • You are unmarried (for head of household status), so you satisfy that requirement.
  • However, your spouse is not a qualifying person, so you are not maintaining a household and fail this requirement.

However, if there is someone else living in your home who qualifies as a dependent, you will be eligible to claim head of household filing status.

Example

You are a U.S. citizen or resident alien, married to a nonresident alien. You maintain a home where you and your spouse live. You a dependent child who lives with you.

You are eligible for head of household status.

  • You are unmarried (for head of household status), so you satisfy that requirement.
  • Your spouse is not a qualifying person for determining whether you maintain a household. However, your dependent child is a qualifying person.

In summary:

  • If the situation involves a married couple, it is impossible to have the U.S. citizen (or resident alien) spouse qualify for head of household status because there is no qualifying dependent.
  • If there is someone else who is a qualifying dependent so that the “maintain a household” requirement is satisfied, then head of household status is permitted for the U.S. citizen (or resident alien) spouse.

Home For Your Parents

You can maintain a household that is not your own. That will be sufficient to qualify you for head of household filing status.

This is not relevant to the question of what can a married couple do for head of household status, but I thought I would note it here anyway.

Summary

It seems counterintuitive that a married person can claim head of household filing status–a status reserved for unmarried individuals. Yet . . . there you are. It can be done.

 

  1. For certain defined values of “Friday” and “morning”. May not be valid where you are right now. ↩
  2. IRC §2(b)(1). ↩
  3. IRC §2(b)(1). ↩
  4. IRC §2(b)(3)(A). ↩
  5. IRC §2(b)(1)(A) and IRC §2(b)(1)(B). ↩
  6. IRC §2(b)(1). ↩
  7. IRC §2(c). This includes same sex marriages and common law marriages. ↩
  8. IRC §2(b)(2)(B). ↩
  9. IRC §2(b)(3)(A). ↩
  10. Prop. Reg. §1.2-2(b)(1)(i). ↩