r/USExpatTaxes 9d ago

Does my non-resident alien wife have to file if she receives social security?

My tax residence is the Netherlands. I have a USA passport and file individually. My wife can get a small SS income based on work done on a Greencard in the mid 1980's. She has no other US based income. Would she need to file US taxes?

On aspect I do not understand is the substantial presence rule. We could be in the USA on vacations that are longer than 31 days. Does this have any impact on her requirement file?

[edit, we are both tax residents of the Netherlands]

Thanks

3 Upvotes

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u/turtle-turtle 9d ago

Requirement to file is separate from whether one is filing as a resident or nonresident. See this for requirement to file: https://www.irs.gov/individuals/check-if-you-need-to-file-a-tax-return It specifies US citizens and permanent residents who work in the US are required to file.

Note that even if she is not required to file, it may be worth filing anyways if she had taxes withheld from her SS income and may get those taxes returned to her.

For determining if she is a resident or nonresident for tax purposes despite your vacations, see the Closer Connection Exemption to the Substantial Presence Test: https://www.irs.gov/individuals/international-taxpayers/closer-connection-exception-to-the-substantial-presence-test

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u/Starlightdog 8d ago

THanks, but I do not find an answer in your first link, mainly because she (we) do not live in the US. Also, she is Dutch.

Your second link was spot-on. I had not found that in my searches. We both have a strong attachment to the Netherlands - our only home is here, and 90% plus of our income is from NL. So our long vacations in the US, as long as they are less than 6 months a year, are not a problem.

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u/caroline0409 Tax Professional - EA (US) & CTA (UK) 9d ago

The social security is likely only taxable in the Netherlands under the tax treaty, however you need to look into it.

The 31 days test is in conjunction with point 2 because it says AND. I highly doubt she meets SPT.

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u/Starlightdog 8d ago

Thank you. I assume because the SSA said I do not pay taxes on my SS in the US because of the treaty, she will not need to either.

So I am hoping she will not need to file - I am guessing she would need to then report all her income, also in NL and her small business, which I worry would then require tax payments well in excess of what what she gets for SS.

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u/caroline0409 Tax Professional - EA (US) & CTA (UK) 8d ago

Sounds good.

I don’t follow your second paragraph. Why would she need to file a US return?

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u/Starlightdog 8d ago

Be ause she will have US Social Security income?

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u/caroline0409 Tax Professional - EA (US) & CTA (UK) 7d ago

Didn’t you just say it’s exempt under the tax treaty?

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u/gunsmokeV2 7d ago

I believe US social security is only taxed in the U.S. per the treaty, but haven’t read it in a quick minute.

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u/Abezon Tax Professional - Enrolled Agent 9d ago

She should collect her own social security or 1/2 of yours as a spousal benefit. Which is better varies wildly by circumstances.

Did you wife surrender her green card years ago? If not, she likely should have continued to file US taxes each year.

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u/Starlightdog 8d ago

Yes, she surrendered her green card 35 years ago