Dear AtlantaTaxExpert,

I came to the State in 2002 August on F2 Visa; I then changed to H4 Visa in Nov,2002 (because my wife switched from F1->H1 at the same time frame). Later I changed to F1 Visa in Jan. 2004 when myself became a graduate student here. I worked since April 2005 on F1 OPT, finally in Jan, 2006 I changed to H1(My wife keeps her H1 status during the whole later period).

Physically I am present in the state all the time. My questions are:
1) If we don't choose “Married file jointly”, Can I file 1040NR as a non-resident alien
2) Can I clam the $5000 Tax treaty since I am a Chinese?

Your help will be highly appreciated.

Regards!
3/26/06

1) Yes for 2005, if you filed as a non-resident in 2004. If you filed as a resident alien in 2004, the IRS will expect the same for 2005.

2) Yes, if you can file as a non-resident alien. NO if you are filing jointly with your wife as a resident alien.

Dear AtlantaTaxExpert

Thank you so much for your prompt answers!
Please allow me to ask one last question here, sorry for bugging you more.

In 2004, my wife and I chose to file jointly as resident aliens, hence as said above, IRS will expect the same from me for 2005. In that case, how do I get refund for social security and medicare taxes withhold from my 2005 salary - I mean is it still possible I use form 843/8316 to ask for a refund for them, even if I have to file as resident alias for 2005?:confused:

Regards!
3/26/06

AndyDD:

You can still request the Social Security and Medicare refund, but the chances that it will be approved are greatly reduced by you filing as a resident alien.

Further, while you can attempt to amend your 2004 return to go back to non-resident alien status, the IRS will likely not authorize that. They normally consider the decision to file jointly as irrevocable.

Sorry to be the bearer of bad news.

Thanks for your replies AtlantaTaxExpert
(although they are no good news to me)

I appreciate your help!
Regards!
3/27/06

Wish it would have turned out better.