Personal Finance

He's an American but his wife is not. He's not getting a stimulus check

Key Points
  • The government is sending $1,200 stimulus checks to millions of Americans, but there are exceptions.
  • In order to qualify, you must have a Social Security number. And if you file joint tax returns with a spouse, they must also have a Social Security number.
  • That means many American citizens, as well as their children, are not receiving checks. Now some individuals and advocacy organizations are expressing their outrage over the exclusion.
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When John Vogt, Jr. wondered where his stimulus check was, he was shocked to find out that he was not eligible for one.

Vogt, 49, of Bronx, N.Y., is a fourth-generation American. In July, he married to a woman who is a Brazilian citizen. This year, they filed a joint tax return as a married couple.

Consequently, he is disqualified from receiving his $1,200 stimulus check.

The government is in the process of sending out millions of stimulus checks after Congress passed the $2 trillion Cares Act. Those checks amount to up to $1,200, or $2,400 per married couple, plus $500 for children under 17.

However, read the fine print and you find that the rules require individuals to have Social Security numbers in order to get the money. American citizens who filed jointly with someone in that category are also disqualified.

That has prompted disbelief from people like Vogt, a truck driver who was counting on the money to help start building an emergency cushion in the bank.

"How much more American do I have to be?" Vogt said. "That really offended me."

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Vogt is not alone. The Mexican American Legal Defense and Educational Fund recently filed a lawsuit against the federal government on behalf of six citizens who were deemed ineligible for stimulus checks because their spouses use Individual Tax Identification Numbers (ITINs) when filing their tax returns.

ITINs are generally issued to non-American citizens for tax filing purposes.

A separate lawsuit was filed this week on behalf of American children who are being excluded from the payments because both of their parents are not citizens.

Meanwhile, Americans who find themselves excluded from receiving checks still have questions.

Guidance from the IRS does address the situation, though the information is limited.

Someone who is a non-resident alien as of 2020 does not qualify for a check, the agency says in its Q&A on the economic impact payments.

There is one exception. Only one spouse needs to have a Social Security number to qualify for a check if either spouse is a member of the U.S. military during the taxable year.

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If individuals are not qualifying residents and receive a payment, they should return it, according to the IRS.

Accountants who work with married couples where one individual files with an ITIN are left to try to untangle the riddle for their clients.

"This stimulus stuff is a nightmare!" one accountant at Greenback Expat Tax Services said in a memo to clients.

David McKeegan, who co-founded Greenback, said that many couples are high net worth, and therefore are not eligible for stimulus checks to begin with. (The payments phase out completely for couples with over $198,000 in income.)

Couples below that threshold have had mixed results.

"In some cases, we have seen people filing with a [non-resident alien] who happens to have a [Social Security number] and thus receive the stimulus payment for both folks," McKeegan said.

"But more often than not, we are receiving frustrated emails from clients asking why they have not received the payment yet," he said.

McKeegan said he hopes there will be a "true-up on the 2020 return to make the playing field a bit more level for everyone."

"We need to see how the final IRS interpretation goes on the 2020 return," McKeegan said.

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For families who need the money now, that is little consolation.

Tiffany, 34, an American citizen who lives in Oregon and asked that her last name not be used, said her family was counting on the money for weeks before finding out they were disqualified.

Her husband, 45, is from Mexico. The couple has children ages 9 and 4, as well as a newborn baby. Tiffany said she understands that her husband isn't counted, but expected to at least receive $2,700 for her and her children.

That money would have helped tide the family over, Tiffany said, now that her husband has run out of work as a house painter. Fortunately, she is still employed as an administrative supervisor.

Meanwhile, her husband pays taxes to the U.S. government every year, she said.

"We're trying to do the best we can with what we have right now and are being penalized," she said.