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singhaln · Feb 20, 2006, 02:15 AM

Okay,

Here is my situation:
* I have been filing as F1 student for the last five years.
* I was on F1-OPT till June 30th 2005.
* I moved to H1B from July 1st 2005.
* Got married on Nov. 27. Spouse is in the US from Dec. 12.

I am planning to file federal tax as married jointly and
Requesting for the ITIN for my spouse with W-7 form.

Questions:
* What form(s) should I use for filing federal tax return,
Specifically as 1040NR or as a Resident?
* Given my nationality is Indian, can use tax-treaty
Article 21(2)?

Thanks,
N

AtlantaTaxExpert · Feb 20, 2006, 08:00 AM

Singhaln:

When precisely did you arrive in the U.S.

If you arrived in 2001, then your F-1 visa status has not run out. You are technically dual-status, but you can file as a resident alien because you meet the Substantial Presence Test (exactly 183 days if you do not count July 1st).

If you arrived anytime in 2000, your exemption status under the F-1 visa has expired, which again means filing as a resident alien.

As a resident alien, you file the normal tax forms (Form 1040/1040A/1040EZ). Under these circumstances, you cannot claim any treaty exemption. However, you can claim the standard duduction, which is what the treaty exemption allows anyway, so it's a wash.