Hi,

I came in the USA in Jan 2004 on F1 visa status. I converted to H1b in Oct 2008. I am married. My wife is on F1 visa status (OPT). Should I be filing taxes as non resident alien using form 1040NR or can I file as a resident jointly with my wife?

Thanks,

AE

Choice 1: Both of you file nonresident tax returns with Form 8843. Both will claim treaty benefit.
Choice 2: You can file joint return as residents. Since you did not complete SPT in 2008, you must wait to file your 2008 tax return till you complete SPT in 2009. Read about F1 and H1-B tax filing: Your U.S. Tax Return: The U.S. Visas (http://taxipay.blogspot.com/2008/08/us-visas.html)

Thanks MukatA for your answer. I have been on H1B since October 1st, 2008. So, that means basically 92 days in 2008. How would I calculate SPT for this year. Would I meet SPT at the end of March or April?

If I file my taxes late to meet SPT, would I be penalized?

Thanks,

AE

AE:

If you are due a refund, there will be NO penalties for filing late, since you must file in June 2009 to meet SPT.

If you DO owe money, then make the needed payment when you request an exetnsion by filing Form 4868.

Thanks Atlanta Tax Expert. So I have to wait till June 2009 to file my taxes.

My wife is on F1 visa status. Do we have to file separately or we can do a joint filing?

Are not we moving in a circle?
Please read my first post choice 2 and all the subsequent posts.
If you want to file a separate return, you have choice 1.

AE:

If you are due a refund, there will be NO penalties for filing late, since you must file in June 2009 to meet SPT.

If you DO owe money, then make the needed payment when you request an exetnsion by filing Form 4868.

Hi,
One clarification..
When we are due a refund and filing late for some valid reason, do we need to request an extension by filing form 4868? What about state tax return filing?
Thanks for your time and reply.

The extension request is technically required, but there are no penalties for NOT filing the extension Form 4868.

Many states do not require an extnesion unless you owe taxes. Others consider the extension filed when you file the Form 4868, while still othershave their own extension form.

Filing the extension is recommended. If you made a mistake in calculating how much you owe, the penalties may be lower if you filed an extension.