I was in F1 (OPT) for year 2005. My wife was in dual status F1 and H1B partially for year 2005. So, we filed married filing jointly (resident alient).

Some of the FICA taxes has been withheld bymistake ($500+) for year 2005. Employer did not agreed to claim and pay me back. I filed form 843 separately, claiming the FICA taxes, but it was rejected since I filed '1040, married filing jointly' for that year, and I was considered a resident.

Is there a way to get it back? Shouldn't IRS be sending withheld FICA $$, since I was on F1 at the time it was withheld? Please advice.

Thanks for your help.
Raj

By filing Form 1040 you choose to be treated as resident. So you will not get FICA taxes. Also you can't even amend your 2005 tax return from Married Filing Jointly to married filing separately.

By filing Form 1040 you choose to be treated as resident. So you will not get FICA taxes. Also you can't even amend your 2005 tax return from Married Filing Jointly to married filing separately.

MukatA, thanks for your reply. Just to confirm my understanding. So there is no way to get FICA taxes back, though it was taken by mistake, like I said earlier I was on F1 (student OPT) for the whole year?

Thanks again.
Raj

You made the choice to be treated as a resident for tax purposes for the WHOLE YEAR. You can't then pick which part the F-1 rules apply to and which part you don't want them to apply.

There is a student FICA exemption rule though and you can read more about this on:
Student Exception to FICA Tax (http://www.irs.gov/charities/article/0,,id=120663,00.html) and http://www.irs.gov/pub/irs-irbs/irb98-05.pdf