David Knight <my-email-address[at]their-isp.com> wrote:
- quote -

If an SSN is later received, you can amend up to three years
and use the newly minted SSN to replace the ITIN. The
explanation on the 1040X would say a) to indicate the SSN to
replace the ITIN and b) to claim EIC, formerly not claimed
due to not having yet received an SSN.

Look at it this way: if you simply delayed filing a tax
return while waiting for an SSN, and then filed when an SSN
is received, should you receive more favorable treatment
than if you filed on time with an ITIN and later amended?
It's not like electing an accounting method where you have
free choice of what you are doing. While waiting for an SSN
you have little choice other than to wait.

__
Art Kamlet ArtKamlet [at] AOL.com Columbus OH K2PZH

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Bryan Kellar" <bryan[at]oregontaxhelp.com> wrote:

- quote -

That's substep 2 of step 1. That's what refers you to page 47.

--
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amlet[at]panix.com (Arthur Kamlet) wrote:

- quote -

Is the SSN required during the tax year of the EIC, or would
it be legitimate to file an amended return with EIC when the
SSN is assigned sometime in the future?

Does the answer to that question depend on why she doesn't
have the SSN yet? If it's only because of government
errors, does that make a difference?

And what are the implications of filing an amended return
with a new SSN, when the original ITIN was valid for filing
the original return? Legally she's still the same person,
but if the IRS keeps track of people by their numbers, might
they consider her to be a new taxpayer filing a new return?

--
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"David Knight" <my-email-address[at]their-isp.com> wrote:

- quote -

As you've been told in the previous responses, both spouses
must have a valid social security number (SSN) to qualify
for EIC. The fact that your wife must use an Individual
Taxpayer Identification Number (ITIN) in lieu of a valid SSN
disqualifies you from receiving EIC. Since you do not
qualify, you should file your return by the extended due
date without claiming EIC.

However, the IRS counsel opinon linked below opines that you
can amend your return to claim EIC once your wife is issued
her SSN. Since you extended the due date of your 2003
return, once your wife receives her SSN, you have until
August 15, 2007 (the extended due date plus 3 years) to
amend your 2003 return and claim EIC. You also can amend
any previous years' returns on which you would have
qualified for EIC but for your wife's lack of an SSN
provided she receives her SSN prior to the 3-year statute
lapsing.

http://www.irs.gov/pub/irs-wd/0028034.pdf

Barney Byrd

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David Knight wrote:

- quote -

It appears that you don't qualify, as the other posters
have noted. However, if, for some reason, the green
card were to be issued backdated to 2003 or earlier,
coould you then file amended 2003 returns claiming
the EIC?

For that matter, even if it's not backdated, could
you file amended returns? (The instructions say
you must have a valid SSN to file. It doesn't say
that the SSN must have been valid at the time
covered by the return. However, instructions have
been known to be wrong, before.)

I don't have the answers.

As a further aside to this, I recall that the law
requiring dependents to have SSNs was specifically
written to allow filing an amended return claiming
the dependent after the SSN was required.

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David Knight <my-email-address[at]their-isp.com> wrote:

- quote -

Correct.

In order to qualify for EIC, you, your spouse, and your
EIC-qualifying children must all have SSNs. An ITIN will
not satisfy the SSN rule.

- quote -

Do not file unless you all have SSNs.

__
Art Kamlet ArtKamlet [at] AOL.com Columbus OH K2PZH

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"David Knight" <my-email-address[at]their-isp.com> wrote:

- quote -

I`f you are married, you must both be US citizens or permanent residents to
claim the EIC. Having an ITIN instead of an SSN is evidence that she is not
a PR yet. So is the lack of a "Green Card".

- quote -

Page 47 says: "Nonresident Aliens. If your filing status is
married filing jointly, go to Step 2 on page 44. Otherwise,
stop; you cannot take the EIC." When you get to Step two, it
breaks the news that you that both of you must have an SSN.
I read the message here to mean that if you are a
non-resident alien, you cannot take the EIC. That section
of the instructions is probably not worded well.

- quote -

She is a non-resident specifically because she is not a
permanent resident yet. For tax filing purposes, you may
elect to file a joint return with her and file as a
resident. However, that does not make her a resident for EIC
purposes.

She will not be able to get a SSN usable for EIC purposes
until she has permanent resident status. It is possible to
get a valid SSN for other purposes, if there is some federal
benefit that she qualifies for that requires one. This SS
Card will have the notation "Not Valid For Employment",
which will also make it useless for EIC purposes, even
though it is a valid SSN.

- quote -

Please don't try that. If you submit the form with an ITIN,
the form will not even be processed, if e-filed. If mailed
in, the IRS will "correct" the return to remove the
improperly taken EIC. They will likely consider this a
clerical error, and correct it at that level. When you do
qualify for the EIC at some point in time, they can (and
often do) require you to explain your current situation in
full, which they will then take months to verify before
sending you a refund.

Sorry, you just don't qualify at this time.

Bryan

--
-------- Bryan Kellar, EA
Oregon Tax Help, Inc. Portland, Oregon
www.oregontaxhelp.com
www.canadatax.org

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David Knight <my-email-address[at]their-isp.com> wrote:

- quote -

From IRS Pub 596 -

You cannot get the EIC if, instead of an SSN, you (or your
spouse, if filing a joint return) have an individual
taxpayer identification number (ITIN). ITINs are issued by
the Internal Revenue Service to noncitizens who cannot get
an SSN.

No SSN. If you do not have a valid SSN, put “No”
directly to the right of line 63 (Form 1040), line 41 (Form
1040A), or print “No” on line 8 (Form 1040EZ).
You cannot claim the EIC.

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David Knight wrote:

- quote -

In order to qualify for the EITC you both would have to have
a valid SSN. Assuming your wife has been present in the
U.S. since 1999 she is a resident alien because she passes
the substantial presence test (assumes she does not meet any
of the exceptions such as international student status).

Even if your wife met one of the exceptions to the
substantial presence test and was a nonresident alien for
some part of 2003, you would still be considered married and
she would need a SSN for you to qualify for the EITC.

Finally, the only possible way you might qualify for the
EITC is if your wife did not live with you during any part
of the last six months of 2003 and you could meet the other
rules for filing as Head of Household under the "Considered
Unmarried" rules. You can find these rules in IRS Pub 501
starting on page 7.

--
Alan
http://taxtopics.net

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My wife is an immigrant whose green card has been delayed
since 1999 due to various snafus which aren't our fault.
I'm an American citizen and was unemployed for most of 2003.
I filed for an extension and am now doing my 2003 taxes.
We have 2 children, both American citizens, with SSN's. My
wife has an ITIN (taxpayer ID number) which is why I'm not
sure whether we qualify for EIC.

On page 44 of the 1040 instructions, it seems to require
that we both have SSN's valid for EIC, and refers us to page
47 to determine whether they're valid. On page 47 it seems
to say a nonresident alien is ok if married filing jointly.

But is my wife a nonresident alien? She has never had a
job in the USA, and doesn't have an employment authorization
document, so maybe she's still considered nonresident
because she doesn't have her greencard yet. But even if she
is nonresident, is her ITIN valid for EIC when used with my
SSN? She tried to get her SSN but was denied because she
doesn't have a green card yet.

If we file for EIC to find out if we qualify, and it turns
out we don't qualify, will we get the 2-year prohibition
against filing for EIC again? If we leave it for the IRS to
calculate our EIC, will that prevent the 2-year prohibition?

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