Could a married California taxpayer claim head-of-household status when the taxpayer's spouse was a nonresident alien?

Plain-English summary

Legal Ruling 1995-1 followed federal head-of-household rules when one or both spouses had nonresident-alien status.

A married taxpayer could be considered unmarried because the taxpayer's spouse was a nonresident alien at some point during the year. But the taxpayer claiming head-of-household status could not personally have been a nonresident alien at any time during that year.

California required the same filing status used on the federal return, so these federal nonresident-alien rules applied despite California's more general rule that federal references to nonresident aliens ordinarily did not apply.

Shared facts

H and W were married and lived together in California. H maintained the home, which was also the principal home of H's dependent mother for more than half the year.

H and W did not elect under section 6013(g) or (h) to treat W as a resident and did not file joint returns.

Situation 1: spouse was a nonresident alien all year

H was never a nonresident alien. W was a nonresident alien for the entire year.

H: Considered unmarried because W was a nonresident alien and qualified for federal and California head-of-household status on the stated household facts.

W: Could not claim head-of-household status and had to use married filing separately for California.

Situation 2: spouse became a resident alien midyear

W was a nonresident alien from January through May and a resident alien from June through December. H was never a nonresident alien.

H: Still considered unmarried because W had been a nonresident alien at some time during the year, and H qualified for head-of-household status.

W: Could not claim head-of-household status because W had been a nonresident alien during part of the year and had to file married filing separately absent the resident election.

Situation 3: H also had nonresident-alien status

H was a nonresident alien from January through May, while W was a nonresident alien for the year.

H: Could not claim head-of-household status because H personally was a nonresident alien during part of the year.

W: Also could not claim head-of-household status.

Both had to use married filing separately because they did not elect resident treatment and could not file jointly under the stated rules.

Why California followed the federal rule

Revenue and Taxation Code section 18521 specifically required an individual to use the same filing status on the California and federal returns, subject to exceptions not involved in the ruling.

That specific filing-status requirement overrode the general California rule that federal nonresident-alien provisions were inapplicable unless otherwise provided.

What this means for you

Taxpayers with a nonresident-alien spouse

A spouse's status can support considered-unmarried treatment, but all other head-of-household requirements still must be met, including a qualifying person and household.

Taxpayers with their own nonresident-alien period

The ruling draws a strict distinction between the spouse's status and the claimant's status. The claimant's own nonresident-alien period barred head-of-household treatment.

Tax professionals

Check the federal return, both spouses' status for every part of the year, any section 6013 election, the joint-return rules, and the qualifying-person facts before determining California filing status.

Common questions

Q: Did a nonresident-alien spouse make H automatically head of household?

A: No. It made H considered unmarried, but H also needed the qualifying household and dependent facts.

Q: Did W's midyear change to resident-alien status prevent H from qualifying?

A: No. W had been a nonresident alien at some time during the year.

Q: Could W claim head-of-household status after becoming a resident alien?

A: No under Situation 2 because W had been a nonresident alien during part of the year.

Q: Could H qualify if H was also a nonresident alien for part of the year?

A: No. Situation 3 denied H head-of-household status.

Q: Why did California apply these federal rules?

A: California specifically required the same filing status as the federal return.

Citations and references

• I.R.C. §§ 2(b)(2)(C), 2(b)(3)(A), and 6013(a), (g), (h)
• Cal. Rev. & Tax. Code §§ 18521 and 17024.5(b)(11)
• Revenue Ruling 55-711, 1955-2 C.B. 13
• Revenue Ruling 74-370, 1974-2 C.B. 7
• 1987 AB 53, Stats. 1987, ch. 1138

Source

• Landing page: California FTB Legal Rulings
• Official HTML: Legal Ruling 1995-1

Original ruling text

Home

Legal ruling 1995-1

STATE OF CALIFORNIA
Franchise Tax Board - Legal Division
PO Box 1468
Rancho Cordova CA 95812-1468

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FAX: (---) --------

March 01, 1995

Control Number: 410:LMT:AL-94-0059

Head of Household Filing Status Nonresident Alien, Nonresident Alien Spouse

Issue

Does California conform to federal provisions regarding the determination of federal head of household filing status where one or both spouses are nonresident aliens?

Facts

Situation 1: H and W are married and live together in California during all of Year 1. H maintains H and W's home as a household that constitutes for more than one-half of the taxable year the principal place of abode of H's dependent mother as a member of H and W's household. H is not a nonresident alien at any time during Year 1. W is a nonresident alien during all of Year 1. H and W do not elect to treat W as a resident and do not file joint returns under Internal Revenue Code § 6013(g) or (h).

Situation 2: Same as Situation 1 except that W is a nonresident alien from January through May of Year 1 and a resident alien from June through December of Year 1.

Situation 3: Same as Situation 1 except H is a nonresident alien from January through May of Year 1.

Law and Analysis

Under federal law (Internal Revenue Code (IRC) § 6013(a)(1)), no joint return may be made if at any time during the year either spouse was a nonresident alien. However, if one of the spouses was a resident at the end of the year and both spouses elect to treat the nonresident spouse as a resident, a joint return may be filed. (IRC § 6013(g) and (h).)

For taxpayers who could elect to file a joint return but choose not to make such election, one of the taxpayers may qualify to file a return using head of household filing status. IRC § 2(b)(2)(C) provides that a married taxpayer is considered to be unmarried for head of household filing purposes if at any time during the taxable year his [or her] spouse is a nonresident alien. (Rev. Rul. 55-711, 1955-2 CB 13, amplified by Rev. Rul. 74-370, 1974-2 CB 7.) Under IRC § 2(b)(3)(A), if an individual was a nonresident alien at any time during the taxable year, the individual may not be considered to be a head of household.

In 1987, AB 53 (Stats. 1987, Ch. 1138) was enacted, specifically providing that an individual must use the same filing status on the individual’s California return as used on the individual’s federal return, with certain specified exceptions that are not applicable here. (Rev. & Tax. Code § 18521 (formerly § 18402; formerly § 17043).)

Rev. & Tax. Code § 17024.5(b)(11) provides that unless otherwise specifically provided, when applying any section of the IRC for California purposes, any provision that refers to nonresident aliens shall not be applicable. The specific requirement of Rev. & Tax. Code § 18521 that a taxpayer use the same filing status on a California return as used on the taxpayer’s federal return, is a specific exception to the Rev. & Tax. Code § 17024.5(b)(11) general rule concerning federal nonresident alien provisions. Therefore, California follows federal law regarding head of household filing status, and the IRC provisions regarding nonresident aliens are applicable in determining eligibility for California head of household filing status.

Holdings

California conforms to federal provisions regarding the determination of federal head of household filing status where one or both spouses are nonresident aliens.

Situation 1: H is considered unmarried for head of household purposes because W is a nonresident alien. Accordingly, H qualifies for head of household filing status for federal and California purposes. W does not qualify for head of household filing status because W is a nonresident alien. W must file a separate return using married filing separate status when filing a California return.

Situation 2: H is considered unmarried for head of household purposes, and, thus, qualifies for head of household filing status for federal and California purposes. W does not qualify for head of household filing status because she was a nonresident alien during part of the year. Because H and W did not elect to treat W as a resident, W must file a separate return using married filing separate status.

Situation 3: Because H was a nonresident alien for a portion of Year 1, H does not qualify for head of household status, and, accordingly, H may not be considered unmarried by virtue of W's nonresident alien status. W does not qualify for head of household status because W is a nonresident alien. Because H and W did not elect to treat W as a resident, H and W must file separate returns using married filing separate status.

Drafting Information

The principal author of this notice is Lynn Toliver of the Franchise Tax Board Legal Division. For further information regarding this notice, contact Ms. Toliver at the Franchise Tax Board Legal Division, P.O. Box 1468, Sacramento, CA 95812-1468.

NOTE: ((---)) = Indicates obsolete information.

Last updated: 09/24/2025