Recovery Rebate Credit

[Christian]

A married mother of one child who lives with her is filing a 2021 tax return. She and her husband is a non citizen with  a social security or Tin who has been living here since childhood apparently. They have never since being married some years back filed a federal or Virginia tax return likely fearing he risked deportation. They have separated and she is filing back tax returns for years 2020 through 2024. A question has arisen about the Recovery Rebate Credit in that a question is asked"Can you be claimed on another person's return". Yes she could be claimed on his return if they had filed in 2021 filing as married filing jointly but no return was filed. This is a disqualifying question and frankly I am stumped as how to answer. I am of the opinion to simply leave nothing on line 30 and let the Service decide. What do you think. I would like to help her but am not going to file an incorrect return. 

[Christian]

This may be the answer. You can't claim your spouse as a dependent if you file jointly. The question above should have included "as a dependent".There remains a question in my mind as to whether the Service will pay this credit. Time will tell.  

[Pacun]

You don't mention how much she made and who she lived with, those two questions and her age are important in determining if she can be claimed by another person. 

It seems strange that while situation was favorable for her, she didn't file her taxes and now that "la tortilla se esta volteando", she wants to file her taxes.

"She and her husband is a non citizen with  a social security or Tin who has been living here since childhood apparently." It is not clear if you meant to use "without SS or ITIN" and the rest of the sentence is not necessary. If they don't have SS number or ITINs, you might have to request an itin for both of them since you might need them when filing MFS or jointly. You mention they are separated but you don't say when they separated or if the child went to live more time with the mother or the father. 

When not enough information, I pull my crystal ball and I believe that you most likely are going to file 2020 (no refund or rebate, if any, for that year because it is too late) MFS, 2021 might be too late too because by the time the ITIN is issued, April 15, 2025 will be gone. Again 2021 (according to my crystal ball) will be MFS, 2022 and 2023 will be MFS and those will be in time most likely. 

2024 could be Head of household.