I believe Sec. 2.(b)(2)(C) applies to any instance where a resident is married to a non-resident. Hence why the "first year choice" exists for residents in their first year of residence - because you are not automatically considered married. I was suggesting that Sec. 151. (b) does not apply to first year residents by virtue of Sec. 2.(b)(2)(C).

I have been reading some of your other posts in which you have talked about not being able to choose single status if your spouse is non resident during the year. When I read Sec. 2.(b)(2)(C) ("a taxpayer shall be considered as not married at the close of his taxable year if at any time during the taxable year his spouse is a nonresident alien"). I presumed that my US citizen spouse could file as single for tax purposes and we would not be conisdered married for tax purposes by virtue of me being a non-resident alien for the first part of the year (in the absence of an election to the contrary). I'm confused. Am I right in saying that we must file MJS or MFJ notwithstanding Sec. 2.(b)(2)(C)?

If we do file MFS can my spouse claim my personal exemption on her return? To quote page 28 of publication 519:
"You can claim an exemption for your spouse on a separate return if your spouse had no gross income for U.S. tax purposes and was not the dependent of another taxpayer. You can claim this exemption even if your spouse has not been a resident alien for a full tax year or is an alien who has not come to the United States."

Many thanks for all your help.

“I have been reading some of your other posts in which you have talked about not being able to choose single status if your spouse is non resident during the year. When I read Sec. 2.(b)(2)(C) ("a taxpayer shall be considered as not married at the close of his taxable year if at any time during the taxable year his spouse is a nonresident alien").” I presumed that my US citizen spouse could file as single for tax purposes and we would not be conisdered married for tax purposes by virtue of me being a non-resident alien for the first part of the year (in the absence of an election to the contrary).”--->I do NOT think so; a taxpayer with a nonresident alien spouse( IU guess you are a US resident) can choose to file a tax return jointly with the spouse, or separately as a single filer. The Internal Revenue Service allows individuals with a nonresident spouse to treat the spouse as a resident alien, or to file taxes using an unmarried filing status. Using the unmarried filing status can lower the taxpaying spouse’s tax liability, but will prevent him from claiming important tax credits.
“ I'm confused. “Am I right in saying that we must file MJS or MFJ notwithstanding Sec. 2.(b)(2)(C)? “-->Correct
;either as MFS or MFJ.
“If we do file MFS can my spouse claim my personal exemption on her return? To quote page 28 of publication 519:
"You can claim an exemption for your spouse on a separate return if your spouse had no gross income for U.S. tax purposes and was not the dependent of another taxpayer. You can claim this exemption even if your spouse has not been a resident alien for a full tax year or is an alien who has not come to the United States."---> I do NOT think so;in my opinion, you are a US resident and Spouses are not dependents of each other. Instead, husbands and wives can choose either to file a joint tax return or to file two separate returns. Filing jointly provides you with two personal exemptions for the husband and wife. She can claim you, but NOT as a dependent. A married person has two, and only two options. He can either; File jointly together with you as said above, meaning that the two of your jointly claim the two of you, and neither of you is claimed as a "dependent", by anyone, or File separately alone, and not claim you. I guess you may contact the IRS.

Thanks Wnhough!

With your help I have finally gotten to the bottom of my tax queries. My spouse will proceed with filing MFS. Regarding the personal exemtion (as opposed to the standard deduction), I have discovered that a second exemption is available on a MFS return for resident and non-resident spouses alike so long as your spouse has no income, is not filing a return and can not be claimed as someone's dependant. The spouse's exemption can be claimed - note that it is NOT as a dependant. To quote Pub 501:
"Separate return. If you file a separate return, you can claim an exemption for your spouse only if your spouse had no gross income, is not filing a return, and was not the dependent of another taxpayer. This is true even if the other taxpayer does not actually claim your spouse as a dependent. This is also true if your spouse is a nonresident alien; in that case, your spouse must have no gross income for U.S. tax purposes."

“I have discovered that a second exemption is available on a MFS return for resident and non-resident spouses alike so long as your spouse has no income, is not filing a return and can not be claimed as someone's dependant.”--->No.
“ The spouse's exemption can be claimed - note that it is NOT as a dependent. To quote Pub 501:”--->Correct;but NOT as a dependent but you can claim a personal exemption as long as you file your return as MFJ, NOT MFS..
"Separate return. If you file a separate return, you can claim an exemption for your spouse only if your spouse had no gross income, is not filing a return, and was not the dependent of another taxpayer. This is true even if the other taxpayer does not actually claim your spouse as a dependent.
“This is also true if your spouse is a nonresident alien; in that case, your spouse must have no gross income for U.S. tax purposes."--->Incorrect; married filing separately means that both parties will file their own returns and that both parties will claim themselves. You qualify to file as married filing jointly. assume that you r psouse is a non US person and you are a US person, then you are not allowed to claim a personal exemption for your nonresident alien spouse even though your wife, a nonresident alien, has no US income and did not file a return. And you filed as married filing separately. She does not have an SSN . However, alternatively you CAN file a JOINT RETURN with her as said previously if she agrees to have her world wide income subject to US taxation.And then if she has no any world wide income or US source income, then you can claim an exemption( a personal exemption, NOT a dependent exemp), for the non US resident spouse on your return, OKKK???? You'll need to attach a joint statement signed by both of you to that affect to your amended return and every joint return you file as long as she's non US resident . You'll also need to attach a Form W-7 Application for ITIN so that she can get an ITIN since she does not have a SSN. As said, I guess you need to contact the IRs for further info in detail.

Thanks

I will contact IRS to confirm, however it says quite plainly in Pub 501 that under MFJ you can file an exemption for yourself and one for your spouse, and under MFS you can claim one exemption for yourself and one for your spouse if your spouse (non resident or otherwise) has no US income, is not filing a return, and is not someone's dependent.

This is supported by Sec. 151 of the IRC code.

Do you have a reference for why it would not be possible to take the second exemption? Because the IRS material on personal exemptions says quite clearly that you can.
Publication 501 (2011), Exemptions, Standard Deduction, and Filing Information

AND YOUR REFERENCE, QUOTE,” Separate return. If you file a separate return, you can claim an exemption for your spouse only if your spouse had no gross income, is not filing a return, and was not the dependent of another taxpayer. This is true even if the other taxpayer does not actually claim your spouse as a dependent. This is also true if your spouse is a nonresident alien; in that case, your spouse must have no gross income for U.S. tax purposes. http://www.irs.gov/publications/p501/ar02.html#en_US_2011_publink1000220858.”---------> NOW Agreed(however, in my personal opinion,I think that the provision is not logical, I guess it is a sort of special provision);basically,it is up to you. However, the other issue is why not file an MFJ return under such a circumstance(as said previously, you can still claim your spouse’s exemption by filing a MFJ return)? As you know well, A person's filing status acts as a sort of switch. Filing status determines which tax rates and which standard deduction amounts apply to a specific tax return. Married Filing Jointly provides more tax benefits than filing a separate return. Married filing separately taxpayers have the least beneficial tax treatment. But MFS status is the one way to achieve separate tax liabilities, which is a benefit not to be overlooked. Married taxpayers should carefully consider whether filing joint or separate returns will be most beneficial for their unique financial situation. Good deal~~
You can still contact the IRS for more accurate information in detail.