Dear Atlanta Tax Expert,

I've been browsing through this forum and have found your responses quite informative. Considering April 17th is the deadline I have a question at the 11th hour.

I came to US on H1B in Oct 10th 2004, for the first time. I was here till Jan 10th 2005, when I went to India (I am an Indian citizen). I came back to the US (to the same city) in April 05th 2005 and am here ever since.

I have always been on H1-B Visa.

According to the substantial presence test:

Number of Days in 2005: 281 (viz. > 31 days)
1/3rd of Days in 2004: 27.3 (82/3)
1/6th of Days in 2003: 0 (0/6)

Sums up to : ~308 days (viz. > 183 days)

And more over ,2005 was not my first year in US.

So, my question would be, do I qualify the Substantial Presence Test?
If so, I assume I dont need to write DUAL-STATUS RETURN in the 1040 form?
And I am eligible for standard deduction instead of the itemized deduction?

Please let me know if my understanding is correct. A quick response would be extremely helpful.

TIA
kgkris

AtlantaTaxExpert

No, you do not meet the Substantial Presence Test; if you file immediately, you must file as a non-resident alien (Form 1040NR) and NOT get the standard deduction.

You CAN wait until June 2006 to file as a resident alien under the First Year Choice. You should mail an extension request (Form 4868) and mail a check if you determine that you owe taxes. If you have a refund coming, no check is needed. Mail the extension TODAY!

kgkris

Thanks for the reply.
Is it ok for me to file the 1040 (DUAL-STATUS RETURN) if I file today?

Also, could you please explain which part of the substantial did I fail? (was the fact that I was not here in 2003?)

kgkris

I also had another question regarding Form 4868.
It talks about figuring out my total tax liability and amount paid for Federal Returns (for which I have a refund).
When I file an extension, is applicable for both Federal and State taxes?

I owe the state of Illinois as well. How do I pay that (and subsequenly mention it in Form 4868)?

Thanks

AtlantaTaxExpert

You will need to access the Illinois website to see what extension they use. They may accept the Form 4868.

If you are getting a refund, then just file the Form 4868 by itself.

IMHO, dual-status filing is not an option in your case. Besides, it is a complicated return which will deny you your $5,000 standard deduction.

taxsearcher

ATE, I'm not sure I agree with you. Why are you suggesting that he/she does not meet the substantial presence test? The days in 2005 clearly exceed 183.

AtlantaTaxExpert

Taxsearcher:

You are correct. I have been dealing with non-resident aliens on F-1 status that it seems to be imprinted on my eyeballs.

Kgkris:

You do meet Substantial Presence. File Form 1040.

kgkris

Thanks for all your responses. I have filed for an extension till Oct. I believe I will file for 1040 in the mean while.

AtlantaTaxExpert

Glad to help!