Hi,

Can I file 2010 tax return under "joint married" status as I'm a resident for tax purpose (and my wife can be too since I am a resident) and still claim exemption from FICA (social and medicare) taxes.

If she cannot claim FICA exemption by filing a joint return with me on 1040, on which option would I get a higher refund (considering FICA refund too)? Option a: Filing joint return on 1040 and not claim FICA exemption. OR option b: Filing individual returns, me using a 1040 and her using a 1040NR and claiming FICA refund.

Right now her employer is deducting FICA taxes from payroll.

I would appreciate any help on this topic.

Thanks
Taxpayer

Taxpayer:

If you want her to claim a refund of imporperly-withheld FICA (Social Security and Medicare) taxes using Form 843 and 8316, then you MUST file Married Filing Separately (with you filing Form 1040), while she files Married on Form 1040NR.

However, it would be better if she just download IRS Pub 519 from Internal Revenue Service, print off page 54-55 and show the employer that she is EXEMPT from the FICA tax to begin with. Once she convinces her employer of this fact, the employer can then make an amendment on the last quarterly Form 941 (Employment Tax) and refund the FICA taxes withheld to date for 2010.

Once that is done and the employer no longer withholds the FICA tax from her pay for the duration of her F-1 visa, then you can file the annual income tax return jointly without it affecting the FICA tax situation.

AtlantaTaxExpert,

Thanks a lot for the answer.

Glad to help!

AtlantaTaxExpert,

Just to confirm, so if my wife's employer refunds the withheld FICA taxes in 2010, I can still file a joint return using 1040 for 2010? If the employer cannot refund, we will have to use 843 and 8316 and file individual returns(1040 and 1040NR).

Also, since I didn't know about the FICA exemption, her employer withheld taxes in 2009 and we filed a joint return (1040) and didn't claim FICA exemption in 2009 tax return. Is it still possible to get a refund on 2009 FICA taxes?

I really appreciate your help.