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Tuesday, May 21, 2013

How to Fix It: Taxpayer Married to Nonresident Alien Denied Married Filing Jointly Filing Status

 By JC Leahy,  MA, Accounting

Here's the situation:  You're married to a nonresident alien and filed a Federal tax return as married filing jointly.  Your spouse doesn't have a social security number, so you filed a paper return.  This worked for you in past years, but for 2012, the IRS denied your married-joint status because of the missing social security number. They increased your taxes and sent you a bill.  How do you fix this?

Here are the steps:

  1. Prepare a 1040-X Amended tax return which contains the explanation that your spouse elects to be treated as a resident alien for purposes of US income taxes, and that a signed statement to that effect is attached, and that a Form W7 Application for Taxpayer Identification Number is attached.
  2. Have your spouse sign a completed Form W7
  3. To the W7, attach a copy of whatever identification documents you choose to submit.  See Form W7 instructions for required identification documents.  Your document or documents must prove your identity and also your foreign status.  Copies of documents must be certified by the issuing agency.  Notarized copies are no longer accepted. Submitting a copy of your passport certified by your country's embassy or consulate is ideal.  You can also submit original documents, but that is not wise. 
  4. Have your spouse sign and date a separate statement to the effect that he/she hereby elects to be treated as a US resident alien for tax purposes.
  5. Attach the W7, a copy of your original tax return, a copy of the IRS notice you received in the mail,  and your completed Form W7 with identification documents -- to your Form 1040X Amended Income Tax Return.
  6. Be sure you BOTH sign the 1040X and, for good measure, both of you re-sign your original tax return. Also your spouse needs to sign the Form W7 and separate statement.
  7. Mail this whole collection of documents to the following special address:

ITIN Operations
PO Box 149342
Austin, TX  78714-9342

That should do it.  Any questions, or comments, let me know.

Wednesday, May 1, 2013

Woah! Look at This!! Beware of Travel to or through New Jersey or New York !!!!

This week's Outrage concerns a legal case that comes to us from New Jersey, where a well-meaning firearm owner, through a series of events that were no fault of his own, inadvertently ran afoul of the law (or, rather, an interpretation of the law).

Gun owner Gregg C. Revell was flying from Salt Lake City, UT, to Allentown, PA, by way of Minneapolis, MN, and Newark, NJ.  Revell had an unloaded firearm that was legally checked in his luggage, which he was to pick up upon his arrival in Allentown.

That was the plan, but things soon went awry.  Revell's flight into Newark was delayed, causing him to miss his connecting flight to Allentown.  He was able to book a seat on the next flight, but that course of action was changed by the airline. He then tried to take a bus, but his luggage didn't make it to the bus on time.  He retrieved his luggage, but missed the bus.  With no more connections to Allentown until the following morning, Revell went (with his luggage, of course) directly to, and stayed the night at, the Airport Sheraton Hotel.  By this time, Revell had been through a lot, but his real trouble was just beginning.  

The next morning, Revell returned with his luggage directly to the airport.  He checked his luggage and, as he was supposed to, told the agent that he had an unloaded firearm stored in a locked case in his luggage.  It was at this point that Revell's destination changed from Allentown to a Newark jail cell.  He was arrested on the spot because New Jersey law requires a permit to possess a handgun (and also bans the hollow-point ammunition that Revell also had in a separate locked container in his luggage), and as soon as Revell's luggage became "readily accessible" to him (in this case, when he took possession of his luggage to go to the hotel) he violated state law.  

The Firearms Owners' Protection Act (FOPA) states that, "Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console."

After spending four days in a Newark jail cell, Revell was released on bail. Revell was eventually cleared of all charges, but he didn't get his firearm and other property back until almost three years later.
With help from the NRA Civil Rights Defense Fund, Revell sued for damages related to his unjust arrest and detention (as a violation of his civil rights), but lost, with the U.S. Court of Appeals, Third Circuit's finding that Revell was not covered under FOPA's narrowly defined safe harbor provision.
So we have a case where a firearm owner does everything he can to obey the law and ensure that he safely transports his firearm.  Through no fault of his own, he is accused of violating the law.  He is arrested, then thrown in the Newark jail for four days, and loses possession of his personal property for almost three years.  That is outrageous!

This case is not as unusual as you may think.  NRA presently has two similar cases awaiting rulings by the U.S. Second Circuit.

NRA members would be well advised to use caution when traveling with a firearm—especially by plane, and especially in the states of New York and New Jersey—if a planned, or unplanned stop in "hostile territory" is necessary.

As originally reported by the Institute for Legislative Action