New 2026 Draft Individual Income Tax Returns (Forms 1040) Ask About Citizenship and Lawful Authorization to Work
The IRS published a draft of the 2026 Form 1040[1] (Federal Individual Income Tax Return). This is currently a draft and subject to revisions. However, it is notable that, on the first page of the form, a new question appears in the section titled “Other Information.” The proposed 2026 Form 1040 asks:
At the time you file your return, are you, and your spouse if filing jointly, a U.S. citizen, U.S. national, or an alien lawfully authorized to work in the U.S.?
A box is then to be check “yes” or “no” for the individual, and spouse.
Putting this question on a standard Form 1040 may seem odd, but undocumented residents of the United States who receive income must file an income tax return.[2]
Individuals (even undocumented residents) who have unfiled returns (but tax return filing obligations) should consult an attorney to get into compliance, as the failure to file returns can result in penalties, interest, and potentially criminal prosecution.
Nonresident aliens engaged in a trade or business in the United States must also file an income tax return (i.e. a Form 1040NR (www.irs.gov/pub/irs-pdf/f1040nr.pdf). This question (regarding U.S. citizenship) also appears on the draft version of the 2026 1040NR (www.irs.gov/pub/irs-dft/f1040nr–dft.pdf) (as well as other draft Forms 1040 in 2026). Thus, the IRS is clearly interested in whether or not the filer of U.S. Individual Income Tax Returns (IRS Forms 1040) is a citizen or otherwise lawfully authorized to work in the U.S.
This is not the first time the IRS has inquired about possible immigration implications on the 1040 tax return. In previous versions of the Form 1040, the IRS has asked whether the filer is “treating a nonresident alien or dual-status alien spouse as a U.S. resident for the entire tax year”[3] (and indeed, that question still exists for the proposed Form 1040 for 2026). This information is needed because, inter alia, a nonresident alien individual is not eligible for a standard deduction (see 26 U.S.C. § 63(c)(6)(B)); and a nonresident alien cannot make a joint return (26 U.S.C. § 6013(a)(1)), unless an election is made, when permitted (see 26 U.S.C. § 6013(g)(1)). The IRS has a detailed publication (Publication 519) to inform aliens about their U.S. tax obligations. www.irs.gov/publications/p519#en_US_2025_publink1000222193.
But why would the IRS suddenly want to know whether the filer is authorized to work in the United States? In the past, the IRS seems to have been happy to simply collect federal tax revenue from resident (and nonresident) aliens (whether or not authorized to work). The role of enforcing federal immigration law has been left to other federal agencies (e.g. U.S. Immigration and Customs Enforcement (“ICE”)). However, it does appear that the IRS is taking a more active role in enforcing immigration laws (and limiting tax benefits for undocumented workers).
Recently, the IRS has announced its intention (and published proposed regulations) to “clarify the federal law regarding the eligibility requirements for taxpayer-funded refundable individual income tax credits.” www.irs.gov/newsroom/treasury-irs-proposes-rules-to-protect-refundable-tax-credits-from-abuse-by-illegal-aliens. The proposed regulations would limit the adoption tax credit (26 U.S.C. § 23), the child tax credit (26 U.S.C. § 24), the American opportunity tax credit (26 U.S.C. § 25A), and the earned income tax credit (26 U.S.C. § 32) to U.S. citizens, U.S. nationals or qualified aliens. Id. Thus, the new question on the draft 2026 Form 1040 would directly address these credits.
Another way in which this new question on the draft 2026 Form 1040 may become relevant is with respect to inter-agency information sharing. Pursuant to 26 U.S.C. § 6103, a taxpayer’s “return information” is confidential, and the IRS is generally prohibited from disclosing this confidential “return information” to anyone. 26 U.S.C. § 6103(a). “Return information” is broadly defined to include almost anything on a taxpayer’s return, including a taxpayer’s identity, nature/source/amount of income, payments, credits, investigations, audits, etc. 26 U.S.C. § 6103(b)(2). However, a federal agency can request disclosure for use in a criminal investigation (26 U.S.C. § 6103(i)).
As set forth in a recently decided court case, Center for Taxpayer Rights v. Internal Revenue Service, No. 26-5006 (D.C. Cir. 2026), it appears that since 2025, the Department of Homeland Security (pursuant to a Memorandum of Understanding (MOU) with the IRS) has been making requests for information (pursuant to section 6103(i)) to get taxpayer return information from the IRS to ascertain the address of undocumented resident aliens. See https://freemanlaw.com/any-five-digits-will-do-the-irs-ice-and-section-6103/. The Court held that this IRS/DHS “Data-Exchange Procedure” likely violated section 6103, as the DHS (i.e. ICE) did not follow the statute in requesting the information.
The addition of this new draft 2026 Form 1040 question raises the possibility that the DHS can simply make requests (under section 6103(i) and the MOU) to the IRS that it identify each individual who checked “no” as to whether or not they’re lawfully permitted to work in the United States (yet receiving sufficient income to require filing of an income tax return). While a court may view this request as too broad (and unlawful), it could certainly disincentivize potential tax return filers from filing, out of fear they are disclosing their unauthorized work status.
Falsely checking “yes” raises other issues, as it would be (1) a false statement on a return; and (2) can derail a prospective citizenship proceeding by making the individual immediately inadmissible under controlling immigration law. Section 212 of the Immigration and Nationality Act (“INA”) (codified at 8 U.S.C. § 1182) provides as follows:
Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including section 1324a of this title) or any other Federal or State law is inadmissible.
INA § 212 (8 U.S.C. § 1182)(a)(6)(C).
Prospective filers with questions about the new Form 1040 should contact an attorney or qualified tax professional.
[1] Available at www.irs.gov/pub/irs-dft/f1040–dft.pdf
[2] Section 1 of the Internal Revenue Code (Title 26 U.S.C.) imposes a tax on the “taxable income” of every individual. Taxable Income is gross income minus deductions. 26 U.S.C. § 63. Gross income means income “from whatever source derived.” 26 U.S.C. § 61. So, the United States taxes all income everywhere. Except, for nonresident aliens (i.e. an individual who does not live in the United States and is not a citizen of the United States), gross income (for purposes of section 61) only includes gross income derived from sources within the United States, or effectively connected with the trade or business within the United States. 26 U.S.C. §§ 871(a), 872(a); Treas. Reg. 1.1-1(a) (“Section 1 of the Code imposes an income tax on the income of every individual who is a citizen or resident of the United States and, to the extent provided by section 871(b) or 877(b), on the income of a nonresident alien individual.”); see also Zhenghan Shi v. Comm’r, T.C. Memo. 2014-173 (2014) (“An alien individual officially residing within the United States…is generally subject to Federal taxation in the same manner as a U.S. citizen and thus would file Form 1040…A nonresident alien individual, on the other hand, is usually subject to taxation only on U.S. source income and would report such income on Form 1040NR…”). Thus, a resident alien must file a Form 1040, and a nonresident alien with income from sources within the United States must file a Form 1040NR.
[3] See e.g., www.irs.gov/pub/irs-pdf/f1040.pdf (2025); www.irs.gov/pub/irs-prior/f1040–2024.pdf (2024); www.irs.gov/pub/irs-prior/f1040–2023.pdf (2023) (2023 version asks if “spouse itemizes on a separate return or you were a dual-status alien.”).
