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Tax Payer’s spouse is a nonresident alien at any time during the tax year, she did not make an election to be treated as a resident alien. Can Tax Payer claim head of household filing status? Form 1040 instructions p 11 seems to suggest that the non-resident alien spouse needs to make an election to be treated as a resident alien in order for Tax Payer to file Head of Household filing status.
Tax Payer also has a new born child born in January 2019.
Appreciate your advice and comment. Thanks.
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That seems to be a glaring error in the 2019 Instructions.
I think it should say that the spouse does NOT elect to be treated as a Resident Alien.
Here is the 2018 Instructions that show it correctly.
https://www.irs.gov/pub/irs-prior/i1040gi--2018.pdf#page=16
So yes, the client can claim Head of Household if the spouse is a Nonresident Alien (that does NOT elect to be treated as a Resident) and meets the other criteria for Head of Household.
