Hi,
I am from India. In 2005, I was on F1 till May 2005. OPT between June 1- December 27 th 2005. My status changed to H1B on Dec 27th 2005. I would like to which form I need to file along with the deductions I am eligible for?

Thanks

Even though you were on H-1B for only five days, you are still a dual-status alien. You must file either a dual-status return (Form 1040 and Form 1040NR) or wait until July 2006 to file as a resident alien (Form 1040, 1040A or 1040EZ).

Your choice!

Hi Atlanta Tax Expert,
I am not sure whether I have to use the substantial presence test. For using the subtantial presence test, I should not count the days I was on OPT right. Then it is less than 31 days for 2005 and so will I not be a non-resident alien and is it not sufficient for me to file 1040 NR EZ along with 8843. Please clarify that.

Thanks in Advance.

Sapillai:

You are correct about the less-than-31 days in 2005, so First Year Choice is not really an option. My fault; should not have answered the question after midnight! :-)

Again, you are a dual-status alien, and technically you should file the dual-status return.

However, if you filed Form 1040NR-EZ along with Form 8843, the IRS would probably accept it as long as you filed as a resident alien for Tax Year 2006.

Hi Atlanta Tax Expert,
I am confused now. I will be a dual status alien when I had been both a resident and a non resident alien during 2005. In 2005, I was on H1B for 5 days which is less than the 31 days criterion of the substantial presence test so I was a non resident alien for the whole of 2005. Still am I technically required to file 1040? Please clarify this.

Thanks in advance.

No, you are technically required to file as a dual-status alien, which means preparing both a Form 1040 and a Form 1040NR. That is the legal means for you to file, and that is what I am formally advising you to do.

However, as a practical matter, if you filed the Form 1040 by itself, the IRS would probably accept the return as filed and not require a dual-status return. It is not the technically-correct filing method, but it would probably be accepted because the amount of tax would be the same.

In 2006, you can file Form 1040 legally as a resident alien.