I am filing the n400 application. I am married and I have had my green card for more than five years. I have paid my taxes all the past years. However our tax preparer has used " head of household " and not married filing jointly . Can the n400 application be denied due to this filing tax status ? I did apply two years ago under the married to a us citizen category and it was denied due to the tax filing status. I understand why it was denied based on that category but will it be denied again under the 5 year category ? We will be filing married filing jointly this year snd onward. Thanks.
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Reapplying under the 5 year rule.
- Thread starter charro
- Start date
cafeconleche
Registered Users (C)
It shouldn't matter with the 5 year rule, but they may question it again. I don't know the technicalities of using that filing status, but if it's not illegal, you should be fine.
Jackolantern
Registered Users (C)
You need to be unmarried or meet the criteria for "considered unmarried" to file as Head of Household. If you did not legitimately qualify for Head of Household, you will need to retroactively correct that by filing amended returns for those years as married-jointly or married-separately, and pay the difference in taxes for each year (if the result is an increase in your tax liability for those years).
You're not allowed to naturalize when you have overdue unpaid taxes, unless you've made an agreement with the IRS to pay the taxes in installments and you have been making the payments. Filing with the wrong status could have resulted in underpayment of taxes, and that's why they denied your case the first time and they'll deny you again if you don't sort this out.
http://www.irs.gov/publications/p501/ar02.html#en_US_2012_publink1000220775
You're not allowed to naturalize when you have overdue unpaid taxes, unless you've made an agreement with the IRS to pay the taxes in installments and you have been making the payments. Filing with the wrong status could have resulted in underpayment of taxes, and that's why they denied your case the first time and they'll deny you again if you don't sort this out.
http://www.irs.gov/publications/p501/ar02.html#en_US_2012_publink1000220775
Head of Household
You may be able to file as head of household if you meet all the following requirements.
You are unmarried or considered unmarried on the last day of the year. See Marital Status, earlier, and Considered Unmarried, later.
You paid more than half the cost of keeping up a home for the year.
A qualifying person lived with you in the home for more than half the year (except for temporary absences, such as school). However, if the qualifying person is your dependent parent, he or she does not have to live with you. See Special rule for parent , later, under Qualifying Person.
...
Considered Unmarried
To qualify for head of household status, you must be either unmarried or considered unmarried on the last day of the year. You are considered unmarried on the last day of the tax year if you meet all the following tests.
You file a separate return (defined earlier under Joint Return After Separate Returns ).
You paid more than half the cost of keeping up your home for the tax year.
Your spouse did not live in your home during the last 6 months of the tax year. Your spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances. See Temporary absences , later.
Your home was the main home of your child, stepchild, or foster child for more than half the year. (See Home of qualifying person , later, for rules applying to a child's birth, death, or temporary absence during the year.)
You must be able to claim an exemption for the child. However, you meet this test if you cannot claim the exemption only because the noncustodial parent can claim the child using the rules described later in Children of divorced or separated parents (or parents who live apart) under Qualifying Child or in Support Test for Children of Divorced or Separated Parents (or Parents Who Live Apart) under Qualifying Relative. The general rules for claiming an exemption for a dependent are explained later under Exemptions for Dependents .
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Jackolantern
Registered Users (C)
It shouldn't matter with the 5 year rule, but they may question it again. I don't know the technicalities of using that filing status, but if it's not illegal, you should be fine.
I think the problem here is that it was illegal to use that status in this situation. Married people aren't supposed to use Head of Household unless they satisfy particular criteria.
However, if the OP actually did qualify to file as Head of Household because of living apart for at least 6 months and the other "considered unmarried" rules, that would mean the condition of living in marital union with a US citizen was not satisfied, in which case naturalization under the 3-year rule was properly denied but it wouldn't be necessary to file amended returns when applying with the 5-year rule.
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Thanks for replies
Thank you for your responses. I have asked a few lawyers this same question.
Most have said that because the second application will be filed under the 5 year rule ,
the " filing status" should not matter. They are concerned with the fact that you filed every year and that you don't owe.
The initial application had to be denied as it was based on the applicant being married to a USC. If one files as HOH then it is declaring that you are not married or your are separated. I will accept responsibility by admitting we acted stupidly by not choosing MFJ as the filing status. We have since changed that. I have decided to wait a few years and reapply . And should the issue of the filing status arise we will have 5 yrs worth of correct filing status. It is somewhat confusing from reading some of the posts here and on other forums with regard to what is required to be brought in for the interview. Most of the applicants that apply under the five year rule usually are asked to only bring their GC, PP and DL.
I have even seen another post similar to mine who filed single for one of her returns even though she was still married and she got through with her natrualization process. So we shall see.
I think the problem here is that it was illegal to use that status in this situation. Married people aren't supposed to use Head of Household unless they satisfy particular criteria.
However, if the OP actually did qualify to file as Head of Household because of living apart for at least 6 months and the other "considered unmarried" rules, that would mean the condition of living in marital union with a US citizen was not satisfied, in which case naturalization under the 3-year rule was properly denied but it wouldn't be necessary to file amended returns when applying with the 5-year rule.
Thank you for your responses. I have asked a few lawyers this same question.
Most have said that because the second application will be filed under the 5 year rule ,
the " filing status" should not matter. They are concerned with the fact that you filed every year and that you don't owe.
The initial application had to be denied as it was based on the applicant being married to a USC. If one files as HOH then it is declaring that you are not married or your are separated. I will accept responsibility by admitting we acted stupidly by not choosing MFJ as the filing status. We have since changed that. I have decided to wait a few years and reapply . And should the issue of the filing status arise we will have 5 yrs worth of correct filing status. It is somewhat confusing from reading some of the posts here and on other forums with regard to what is required to be brought in for the interview. Most of the applicants that apply under the five year rule usually are asked to only bring their GC, PP and DL.
I have even seen another post similar to mine who filed single for one of her returns even though she was still married and she got through with her natrualization process. So we shall see.
Curious
Hi there I have been seeing your responses to other posters and I am impressed by your knowledge. I came across a post from 8-12-11 where you replied that certain documents are not required to be brought in for the interview based on the five year rule. Below is the actual post . Does this then mean that it matters not what you put on the tax as long as you don't file non resident and that you do file. And as such this reiterates your point in your above post.
"Vfor400
8-12-11
Here is the document list, please let me know if I forgot any other documents:
1. Passport
2. Green Card
3. Interview Letter
4. Driver license
5. Last 5 years tax transcripts
6. W2 statements for last 5 years
7. Birth Certificate --> Required?
8. Marriage Certificate --> Required?
9. Bank statements for last 3 months --> Required?
10. Pay stubs for last 3 months --> Required?
11. Utility bills for last 3 mohnths --> Required?
Any other documents???
Thanks"
And here is your reply ,
"1 to 4, and 8 are very likely to be requested. The birth certificate may be required if you have any discrepancies with your name or DOB on different documents (e.g. your name spelling on your passport is different from the GC or DL).
But assuming you're applying with the regular 5-year rule, they're almost surely not going to ask for #5,6,9, 10, or 11 on your list, nor for your lease or mortgage, unless you indicated tax problems or you've been abroad long enough to put continuous residence into question (and if that happened, they'd want statements and bills from the time when your trips were taken). You can bring them just in case, but it would be unusual if you were asked for them."
Again we have since changed our filing status it just seems that that aspect is not very important to the USCIS and more so for the IRS.
Thanks.
I think the problem here is that it was illegal to use that status in this situation. Married people aren't supposed to use Head of Household unless they satisfy particular criteria.
However, if the OP actually did qualify to file as Head of Household because of living apart for at least 6 months and the other "considered unmarried" rules, that would mean the condition of living in marital union with a US citizen was not satisfied, in which case naturalization under the 3-year rule was properly denied but it wouldn't be necessary to file amended returns when applying with the 5-year rule.
Hi there I have been seeing your responses to other posters and I am impressed by your knowledge. I came across a post from 8-12-11 where you replied that certain documents are not required to be brought in for the interview based on the five year rule. Below is the actual post . Does this then mean that it matters not what you put on the tax as long as you don't file non resident and that you do file. And as such this reiterates your point in your above post.
"Vfor400
8-12-11
Here is the document list, please let me know if I forgot any other documents:
1. Passport
2. Green Card
3. Interview Letter
4. Driver license
5. Last 5 years tax transcripts
6. W2 statements for last 5 years
7. Birth Certificate --> Required?
8. Marriage Certificate --> Required?
9. Bank statements for last 3 months --> Required?
10. Pay stubs for last 3 months --> Required?
11. Utility bills for last 3 mohnths --> Required?
Any other documents???
Thanks"
And here is your reply ,
"1 to 4, and 8 are very likely to be requested. The birth certificate may be required if you have any discrepancies with your name or DOB on different documents (e.g. your name spelling on your passport is different from the GC or DL).
But assuming you're applying with the regular 5-year rule, they're almost surely not going to ask for #5,6,9, 10, or 11 on your list, nor for your lease or mortgage, unless you indicated tax problems or you've been abroad long enough to put continuous residence into question (and if that happened, they'd want statements and bills from the time when your trips were taken). You can bring them just in case, but it would be unusual if you were asked for them."
Again we have since changed our filing status it just seems that that aspect is not very important to the USCIS and more so for the IRS.
Thanks.
Jackolantern
Registered Users (C)
While tax returns are not routinely requested with people who apply with the 5-year rule, they do often request them from people who have known tax issues in the past. You were denied last time because of the tax issue, so you can expect them to ask for your returns, possibly including amended returns for the years when you wrongly filed as HoH, even if those HoH returns were more than 5 years ago. You don't need to send them with the application, but you need to be prepared for them to ask for those returns in the interview.
*it's not considered a discrepancy if one of those documents only has your middle initial instead of your full middle name.
Some interviewers are more stringent than others. There's no guarantee your interviewer will be lenient or lazy enough for you to get away with this.I have even seen another post similar to mine who filed single for one of her returns even though she was still married and she got through with her natrualization process. So we shall see.
They almost surely won't ask for 9-10. #8 might be requested if you got married after your green card was approved, and #7 might be requested if there is a name or date of birth discrepancy* in any of your documents (e.g. green card doesn't match passport or driver's license or one of your old visas). If you have children who were born after your green card approval, they may also ask for your children's birth certificates.1. Passport
2. Green Card
3. Interview Letter
4. Driver license
5. Last 5 years tax transcripts
6. W2 statements for last 5 years
7. Birth Certificate --> Required?
8. Marriage Certificate --> Required?
9. Bank statements for last 3 months --> Required?
10. Pay stubs for last 3 months --> Required?
11. Utility bills for last 3 mohnths --> Required?
It is more important to the IRS, but it's still significant to USCIS because they don't want to let people naturalize who have unpaid overdue taxes (unless they've made an agreement with the IRS to pay to the taxes in installments and are making the payments).Again we have since changed our filing status it just seems that that aspect is not very important to the USCIS and more so for the IRS.
*it's not considered a discrepancy if one of those documents only has your middle initial instead of your full middle name.
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Thank you!
Again thank you. And I definitely appreciate your straightforward and non judgmental responses. I have seen quite a few other posters' responses to other people's questions and they have been quite judgmental as though they can and have done no wrong ever in their lives. I am not excusing wrongdoing and totally accept responsibility for my errors. I did some checking on amending the taxes to change the filing status.
Based on when I will be reapplying the N400 I will only be allowed to amend two years back. I missed the deadline for the other years. Here is what I found:
"Step 4 - Amending your tax returns
The IRS allows you to change your filing status for a tax return you’ve already filed if no more than three years have passed since the original tax filing deadline. For example, if you filed as a single taxpayer last year, but now realize you qualified for head of household, you need to make the change on an IRS Form 1040X.
When you change this status, you not only obtain a larger standard deduction, but your income for that year is subject to lower tax rates. Making this change will likely result in a tax refund, but you cannot receive it until you file the amended return.
You can amend a return to change from married filling separate to married filing joint but not from married filing joint to married filing separate. So, once you file a joint return you can not change it to a separate return."
Thanks again jack o lantern for your candor input.
While tax returns are not routinely requested with people who apply with the 5-year rule, they do often request them from people who have known tax issues in the past. You were denied last time because of the tax issue, so you can expect them to ask for your returns, possibly including amended returns for the years when you wrongly filed as HoH, even if those HoH returns were more than 5 years ago. You don't need to send them with the application, but you need to be prepared for them to ask for those returns in the interview.
Some interviewers are more stringent than others. There's no guarantee your interviewer will be lenient or lazy enough for you to get away with this.
They almost surely won't ask for 9-10. #8 might be requested if you got married after your green card was approved, and #7 might be requested if there is a name or date of birth discrepancy* in any of your documents (e.g. green card doesn't match passport or driver's license or one of your old visas). If you have children who were born after your green card approval, they may also ask for your children's birth certificates.
It is more important to the IRS, but it's still significant to USCIS because they don't want to let people naturalize who have unpaid overdue taxes (unless they've made an agreement with the IRS to pay to the taxes in installments and are making the payments).
*it's not considered a discrepancy if one of those documents only has your middle initial instead of your full middle name.
Again thank you. And I definitely appreciate your straightforward and non judgmental responses. I have seen quite a few other posters' responses to other people's questions and they have been quite judgmental as though they can and have done no wrong ever in their lives. I am not excusing wrongdoing and totally accept responsibility for my errors. I did some checking on amending the taxes to change the filing status.
Based on when I will be reapplying the N400 I will only be allowed to amend two years back. I missed the deadline for the other years. Here is what I found:
"Step 4 - Amending your tax returns
The IRS allows you to change your filing status for a tax return you’ve already filed if no more than three years have passed since the original tax filing deadline. For example, if you filed as a single taxpayer last year, but now realize you qualified for head of household, you need to make the change on an IRS Form 1040X.
When you change this status, you not only obtain a larger standard deduction, but your income for that year is subject to lower tax rates. Making this change will likely result in a tax refund, but you cannot receive it until you file the amended return.
You can amend a return to change from married filling separate to married filing joint but not from married filing joint to married filing separate. So, once you file a joint return you can not change it to a separate return."
Thanks again jack o lantern for your candor input.