I worked as a F1 opt student last year. According to IRS, when I filing my tax return (1040NR), I am eligible for the US China tax treaty for $5000.

The problem is that I worked in Jan, 2011 in Minnesota then I changed my job and I worked in Wisconsin for the rest of the year. The HR of the later company mistakenly assumed that my treaty is filed by my previous company in Minnesota, while in fact for Jan, 2011, my monthly income was only $1800, which does not exceed the $5000 limit. So I do not have the essential 1042-s to claim the rest $3200 tax treaty. The HR told me they have already closed their file for the last year so they won't be able to give me a new W-2 and 1042-s :(

I would like to know how I should fill my 1040NR/NR-EZ form under this situation. Shall I just include my available 1042-s and W2 with a statement explaining the issue?

File your tax return and report 1042-S and W-2 income. Claim treaty deduction. You will have a refund. Your U.S. Tax Return: U.S. Tax Filing Requirements for Non-Residents (http://taxipay.blogspot.com/2008/03/us-tax-filing-requirements-for-non.html)

Agreed; you can STILL claim the $5,000 Chinese Treaty exemption with the documents you have.

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Thanks for the reply. So when I filling my 1040NR-EZ, how much should I enter Line 6? Should I enter the $1800 that shown on my 1042-s, or 5000, the total eligible tax treaty?

The exemption is $5,000.

That is what you put.

The exemption is $5,000.

That is what you put.

My understanding is, unlike other deductions, that tax treaty exemption is supposed to be deducted in W2 before filling the 1040NR. The rest $5000 - $1800 = $3200 exemption should be put in a separate Form 1042-s and the total wages shown in W2 should be $43750 - $3200 = $40550 (my current W2 shows $43750), which I don't have.

However much the Line 6 of 1040NR-EZ (Line 22 1040NR) is, it would not influence the final refund value in Line 22 of 1040NR-EZ, because Line 6 will never get into the calculation for the refund. The treaty exemption is very much like pre-tax payment (such as health insurance) which would not be included in the total wage of W2.

I am confused how I could let IRS know that my tax is overpaid because of that.

You just need to subtract that $3200 from line 3 in 1040NR-EZ, because the instructions say "Do not include on line 3 amounts exempted under a tax treaty."

NewAcct covered it quite nicely!