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xzhao
Jul 13, 2005, 06:49 AM
Hello,

Currently, I work for a company in my OPT. But somehow I know my employee should not deduct my Social Security taxes & medicare taxes, the problem is that I just can't figure out which publication and where of the IRS noticed that. I checked the former thread that the tax expert mentioned Pub 519 page 43-48, but there is ONLY 28 pages in total of that publication from IRS website.

Any idea of it should be appreaciated. Thanks.

AtlantaTaxExpert
Jul 13, 2005, 11:39 AM
Xzhao:

The IRS modified the posting from the Adobe document to an online posting. No matter; below is the pertinent information:

Refund of Taxes Withheld in Error

If social security or Medicare taxes were withheld in error from pay that is not subject to these taxes, contact the employer who withheld the taxes for a refund. If you are unable to get a full refund of the amount from your employer, file a claim for refund with the Internal Revenue Service on Form 843, Claim for Refund and Request for Abatement. Attach the following items to Form 843.

A copy of your Form W-2 to prove the amount of social security and Medicare taxes withheld.

A copy of your visa.

Form I-94 (Arrival-Departure Record).

If you have an F-1 visa, Form I-20.

If you have a J-1 visa, Form DS-2019.

If you are engaged in optional practical training, Form I-766 or Form I-688B.

A statement from your employer indicating the amount of the reimbursement your employer provided and the amount of the credit or refund your employer claimed or you authorized your employer to claim. If you cannot obtain this statement from your employer, you must provide this information on your own statement and explain why you are not attaching a statement from your employer or on Form 8316 claiming your employer will not issue the refund.


File Form 843 (with attachments) with the IRS office where your employer's returns were filed. If you do not know where your employer's returns were filed, file Form 843 with the Internal Revenue Service Center, Philadelphia, PA 19255.

xzhao
Jul 13, 2005, 12:49 PM
AtlantaTaxExpert,

Thank you for the list. But I'd like to know if there is any words I could find as the proof for the refund as well as the nondeduction. Since I think my employee would like to refund me if I could find anything related. (I guess they just don't know about that issue.)

Thank you!

AtlantaTaxExpert
Jul 14, 2005, 06:26 AM
Xzhao:

If your employer is employing you under an OPT program, I find it extremely difficult to believe that they do not know the rules associated with such employment (unless you are the first person they have employed under the OPT program). No matter; below is the pertinent citation (paragraph in bold should cover your circumstance):

Nonresident Alien Students

If you are a nonresident alien temporarily admitted to the United States as a student, you generally are not permitted to work for a wage or salary or to engage in business while you are in the United States. In some cases, a student admitted to the United States in F-1, M-1, or J-1 status is granted permission to work. Social security and Medicare taxes are not withheld from pay for the work unless the student is considered a resident alien.

The U.S. Citizenship and Immigration Services (USCIS) permits on-campus work for students in F-1 status if it does not displace a U.S. resident. On-campus work means work performed on the school's premises. On-campus work includes work performed at an off-campus location that is educationally affiliated with the school. On-campus work under the terms of a scholarship, fellowship, or assistantship is considered part of the academic program of a student taking a full course of study and is permitted by the USCIS. In this case, the educational institution endorses the Form I-20. Social security and Medicare taxes are not withheld from pay for this work unless the student is considered a resident alien.

Students in F-1 status may be permitted to participate in a curricular practical training program that is an integral part of an established curriculum. Curricular practical training includes work/study programs, internships, and cooperative education programs. In this case, the educational institution endorses the Form I-20. Social security and Medicare taxes are not withheld from pay for this work unless the student is considered a resident alien.

Employment due to severe economic necessity and for optional practical training is sometimes permitted for students in F-1 status. Students granted permission to work due to severe economic necessity or for optional practical training will be issued Form I-688B or Form I-766 by the USCIS. Social security and Medicare taxes are not withheld from pay for this work unless the student is considered a resident alien.

Students in M-1 status who have completed a course of study can accept employment for practical training for up to six months and must have a Form I-688B or Form I-766 issued by the USCIS. Social security and Medicare taxes are not withheld from M-1 students' pay for these services unless the student is considered a resident alien.

In all other cases, any services performed by a nonresident alien student are not considered as performed to carry out the purpose for which the student was admitted to the United States. Social security and Medicare taxes will be withheld from pay for the services unless the pay is exempt under the Internal Revenue Code.

lbsnake
Aug 30, 2005, 02:39 PM
I think the quote clearly specified that "If you are on NR Alien status, you are not liable to ss tax", but how about the problem of NR Alien status? I remember somewhere in your previous replies you mentioned "F-1 Status negate the substantial presence test". Does it mean you only count presence after the termination of F-1 status? And could you please provide the quotes for this assertion. Thanks a lot for your help.


Xzhao:

If your employer is employing you under an OPT program, I find it extremely difficult to believe that they do not know the rules associated with such employment (unless you are the first person they have employed under the OPT program). No matter; below is the pertinent citation (paragraph in bold should cover your circumstance):

Nonresident Alien Students

If you are a nonresident alien temporarily admitted to the United States as a student, you generally are not permitted to work for a wage or salary or to engage in business while you are in the United States. In some cases, a student admitted to the United States in F-1, M-1, or J-1 status is granted permission to work. Social security and Medicare taxes are not withheld from pay for the work unless the student is considered a resident alien.

The U.S. Citizenship and Immigration Services (USCIS) permits on-campus work for students in F-1 status if it does not displace a U.S. resident. On-campus work means work performed on the school's premises. On-campus work includes work performed at an off-campus location that is educationally affiliated with the school. On-campus work under the terms of a scholarship, fellowship, or assistantship is considered part of the academic program of a student taking a full course of study and is permitted by the USCIS. In this case, the educational institution endorses the Form I-20. Social security and Medicare taxes are not withheld from pay for this work unless the student is considered a resident alien.

Students in F-1 status may be permitted to participate in a curricular practical training program that is an integral part of an established curriculum. Curricular practical training includes work/study programs, internships, and cooperative education programs. In this case, the educational institution endorses the Form I-20. Social security and Medicare taxes are not withheld from pay for this work unless the student is considered a resident alien.

Employment due to severe economic necessity and for optional practical training is sometimes permitted for students in F-1 status. Students granted permission to work due to severe economic necessity or for optional practical training will be issued Form I-688B or Form I-766 by the USCIS. Social security and Medicare taxes are not withheld from pay for this work unless the student is considered a resident alien.

Students in M-1 status who have completed a course of study can accept employment for practical training for up to six months and must have a Form I-688B or Form I-766 issued by the USCIS. Social security and Medicare taxes are not withheld from M-1 students' pay for these services unless the student is considered a resident alien.

In all other cases, any services performed by a nonresident alien student are not considered as performed to carry out the purpose for which the student was admitted to the United States. Social security and Medicare taxes will be withheld from pay for the services unless the pay is exempt under the Internal Revenue Code.

lf1017
Apr 14, 2006, 09:24 PM
Hello,

My case is I am filling 1040 instead 1040NR and I am also a OPT F-1 student. Will I be able to get the withhold SS# and medicare back or I should pay that taxes?

Thanks a lot,

- phong

AtlantaTaxExpert
Apr 14, 2006, 10:44 PM
Phong:

If you file Form 1040 instead of 1040NR, it damages your chances of getting a refund for improperly-withheld SS and Medicare taxes.

Recommend you file Form 1040NR instead.

lf1017
Apr 15, 2006, 12:27 AM
Thanks!

However, I already filed with 1040 last year, is that OK for me to switch back to 1040NR? I have been in US since Aug 1998.

Thanks, Expert!

- Phong

AtlantaTaxExpert
Apr 15, 2006, 10:23 PM
Sorry, if you have been in the U.S. since 1998, you are "stuck" with being classified as a resident alien since 2003.