Hello,

I am French and moved to the US (MA) on Dec 5, 2011 under a J1 visa, to work as a research scholar in a university.
I worked there until Aug 31, 2013, and left the USA on the same date, to go back to France for a new job.

For 2011and 2012, I filed my tax return as a Non Resident alien (1040NR) and didn’t pay taxes for my US incomes under the US-France tax treaty 20(1).
In 2013, I met the presence test (since I spent more than 240 days). And thus became a resident for tax purposes. But I have heard that I still can benefit from the taxes treaty since it is effective for 2 years starting my first day in the US (Dec 2011), and there is an exception to the saving close in the tax treaty 29(2b).
So my understanding of my situation is that I need to file as a dual status alien in 2013: As a resident from January to August, and benefit from the tax treaty (and the exception to the saving close) and then as a NR from Sept to Dec since I was paying taxes in France during this period.

I’m I right? What forms should I file?

Thanks in advance for your answer!
AC.

AC,

Actually, you file as a non-resident alien for 2013 as well, still claiming the tax exemption that you claimed for 2011 and 2012, because the two-year period is 24 consecutive months from date of arrival.

You file Form 1040NR-EZ with Form 8843. You were NEVER a resident, so no Residency Termination Statement is needed.

Email me at the email address in my profile if you need professional help filing this last return.

Hi AtlantaTaxExpert,
Thanks for your quick answer.
Actually, I meet the substantial presence test since my days of presence were:
2011: 31
2012: 360
2013: 240
I have found this:

"If the substantial presence test is met, qualification as a U.S resident begins on the first day during the taxable year in which the individual is physically present in the United States and ceases on the last day of physical presence in the United States (provided that the individual has a closer connection to another country than to the United States during that part of the year after departure, maintains a tax home in the other country for the remainder of the year, and is not a U.S. resident at any time during the next calendar year)."

And if I understood well, exemptions (from counting days) works with calendar years while tax treaty exemption works for 24 consecutive months.
If I was still in the US I would have been considered as resident for the whole year but I would have been able to claim tax treaty exemption until Dec 2013, using 1040:

"As a resident, you will file Form 1040, Form 1040A or Form 1040-EZ, whichever applies to you. Attach Form 8833 to explain the treaty benefit being claimed as well as the reliance on an exception to the saving clause. On Form 8833, check the box indicating disclosure under section 301.7701(b) - 7 of the Treasury regulations. You are required to report worldwide income on the return, but may claim the standard deduction, dependency exemptions, and any other deductions and credits to which a resident alien may be entitled."
Now my problem is with the part of the year I was outside the US. Correct me if I am wrong, but I should be considered as NR and file 1040NR-ez for this. This is why I think I should file as a dual status.
Thanks.
AC.

Ac,

The time while you were on the J-1 visa does not count towards the Substantial Presence Test.

Further, since the treaty specifies that the exemption period lasts for two years from date of arrival, that supercedes the normal two calendar year term of a J-1 visa.