I stayed in US in 2003 , 2004 and in 2005 and as per substantial presence it is total of 160.5 days (which is less than 183days).

1. I filled 1040NR for 2003 without using First Year Choice and became resident in 2004 mid. Is it possible to amend my 2003 return by using first year choice and file as 1040 (resident) for 2003 instead of 1040NR.

2. I filled 1040 (resident) for 2004. I have shortage of 20 days (less than 183 days) to file as resident for 2005 tax year. Since I have not used First year choice for 2003 return is it possible to use First Year choice option or is it right to file extn. Now and then become resident (greater than 183 days) and then file 1040 resident return.

Please clarify my queries.

Mohan:

I believe I answered your query on the other tax forum (Yes, I am Atlanta Tax Guy).

Advice has not changed. You need to file as a resident alien in 2005, because that is what the IRS computer expects.

Finally, you can amend the 2003 return and file as a resident alien if you so desire. I did not think of that option earlier.

Expert ,

Thank You.
I am from India (H1-working) and when I filled 2003 NR tax return in 2004, I did not claim $5000 standard deduction which was mentioned in this forum , SD was not shown in the 1040NR tax form. Is it possible to amend the return and get the benefit.

Mohan:

You can and should amend any return (2003 and 2004) in which you did not claim the Standard Deduction. Even at the lowest tax rate (10%), that amendment will result in at least a $500 refund.

Expert :
Thank You. Is it required to amend State returns too when amending Federal return ? In state return will not be any change in refund or tax only change will be filling status. Please let me know the details that need to attached to federal return in stating the US-India treaty.

Expert :
US India Treaty mentions that Indian students and business apprentices are eligible to claim standard deductions. I am not a student and I am working does this Article 21(2) is applicable for working indians ?

Mohan:

You are amending the returns to file as a resident alien. If you file as a resident alien, then the standard deduction is authorized regardless of your visa status.