[Rahulll2010]

I am on OPT and I do have graduated in December 2009 and stayed in US(2009) more than six months and I am from India. I heard about the American Opportunity Tax Credit. One of my friend said that he applied for this credit and got the credit for the year. He filed it using 1040X. Now my question am I eligible to apply for that credit?

[AtlantaTaxExpert]

While on OPT, you are a non-resident alien and thus ineligible for the American Opportunity Tax Credit (which is an education credit) for 2009.

[Rahulll2010]

Yah but in 2009 Publication 519(US Tax Guides/Returns for Aliens). It says that if we physically present in the United States on at least 183
Days during the 3-year period consisting of 2007, 2008, and 2009 counting all days of presence in 2009, 1⁄3 the days of
Presence in 2008, and 1⁄6 the days of presence in 2007? We are considered as Resident Alien? So now Can you tell me whether I am eligible for this? If I applied for that tax return. Is it gives any trouble in future?

[Rahulll2010]

Yah but in 2009 Publication 519(US Tax Guides/Returns for Aliens). It says that if we physically present in the United States on at least 183 days during the 3-year period of 2007, 2008, and 2009 We are considered as Resident Alien?

[Rahulll2010]

So now Can you tell me whether I am eligible for this? If I applied for that tax return. Is it gives any trouble in future?

[Rahulll2010]

Actually One of my friend applied for it and he got the American Opportunity Tax Credit. And he is also in OPT and he is from INDIA. Can you please let me know the issues in this whether I can apply for it or not?

[wnhough]

QUOTE," Yah but in 2009 Publication 519(US Tax Guides/Returns for Aliens). It says that if we physically present in the United States on at least 183days during the 3-year period consisting of 2007, 2008, and 2009counting all days of presence in 2009, 1⁄3 the days of
presence in 2008, and 1⁄6 the days of presence in 2007?. We are considered as Resident Alien?"----No. I do not think so; you, as a F1 visa holder, is not subject to the 183 day rule for five years. What I mean is that for the first five calendar years, as a F-1 visa holder, you are exempt from the 183day residency test. Hence, you will not be a resident alien until 2012( as I assume that you entered the US in 2007).

[AtlantaTaxExpert]

What wnhough says is correct: time spent in the U.S. while under a F-1 visa does not count toward the 183-day Substantial Presence Test (SPT) for the first five calendar years. This SPT exemption ends for you on 31 December 2011, so for the 2012 tax year, you would be considered a resident alien for tax purposes.

[rohitgopidi1]

Hey Rahul/all, I have gone through the discussion and not able to decide if I can apply for the same as some of my friends have applied and they were given a refund checks and even I would like to apply for the American opportunity Credit but not sure if I can do it as even I'm on OPT. Please let me know if you have done any progress.

[AtlantaTaxExpert]

Sorry, but as international students, you are considered to be non-resident aliens and thus ineligible for any type education credit or deduction.

[rohitgopidi1]

Hi,

Thanks for the quick response but how could others get the refund, cause even they are in the same status as me.

[AtlantaTaxExpert]

Because they filed illegally and the IRS has yet to catch up with them.

However, if they ever attempt to get a green card, that is when their improper filing will be discovered, and they will end up paying the credits PLUS penalties PLUS interest, resulting in a payback that could easily double or triple what they got in credits.

[avish2223]

Hello there,
I has gain lots of information from all of yours conversation. I was in same situation, but now I am clear except for one thing.
Can anyone please help. And information will be appreciate.
I came to USA on Aug, 14 2007 on F1 visa and currently I am on same status. Should I consider myself resident alien when I file tax return for 2012, as I will be completing first 5 years of F1 on Aug, 14 2012?

Thank you

[taxesforaliens]

You were a non-resident alien for 5 years, so 2007, 2008, 2009, 2010 and 2011. You start counting days for the substantial presence test in 2012, so If you pass it, you will be a resident alien.

[AtlantaTaxExpert]

The partial year of 2007 counts as a FULL year towards yor five-year F-1 exemption.

The Substnatial Presence Test start accruing on 1 January 2012, and if you are in the U.S. for every day of 2012, you will file as a resident for 2012.

[miracle19800]

Hi, I have read all of your explanations. I want to ask a question. My friend has taken this credit, he didn't know that it was illegal. He wants to solve this problem. He is in India now. What should he do now?

[AtlantaTaxExpert]

He needs to file an amended return using Form 1040X and UNCLAIM the credit.

[miracle19800]

AtlantaTaxExpert, thank you for your reply.

He came to US in 2009 as a graduate student. He both got the opportunity credit of the years 2009 and 2010. Does he have to pay back them? If yes, how can he do this? He is in India now, can he do this via internet? Where can he find the Form 1040X? He claim this credit via the help of a tax expert in US. Can he also unclaim via that tax expert?

Thank you so much in advance

[AtlantaTaxExpert]

He should go back to the original tax preparer to have HIM amend the return, since it IS his mistake.

If the preparer will not help. You can download Forms 1040X and 1040NR-EZ and amend the return yourself.

If you wish my professional help, email me at the email address in my profile if you cannot see it below.