Hello,
I am a foreigner and just got married to US Citizen this year in August. I have tax questions to ask. Here is my situation.

- Start working in Feb 08 as F1-OPT Status until Sept 08. H1B effective on Oct 1st, 2008.
- I got married to US Citizen in Aug 08, I am applying for Green Card but haven't got it yet, right now I am still on H1B status.
- During Feb08 - Sep08, the employer deduct FICA from my paycheck but did not deduct Federal and State Tax.


Q1. If I file married jonly(resident alien) or separately (non-resident alien), do I still get Tax exempt between Feb08 - Sep08 (F1-OPT status)?

Employer said I will get only one W2 form which include income for the whole year. Does it mean I owe Tax to IRS between Feb08 - Sep08?

Q2. IRS told me that I can elect to file jointly or separately. If I file jointly I can not get Fica back. If I file separately , I can request to employer to get FICA back. Which one is more benefit?

Q3. I am considered as a non resident alien now (according to publication below), I have choice to file married separately or jointly with my husband. Do I have other option such as file individually?
http://www.irs.gov/pub/irs-pdf/p515.pdf (page 21)
http://www.irs.gov/pub/irs-pdf/p519.pdf (Page 6)

Thank you very much.
Bee

Bee:

1) Yes, you ARE still exempt from FICA taxes for the Feb 08 - Sep 08 period even if you file jointly. See link below:

Nonresident Spouse Treated as a Resident

Hence, even with only ONE W-2, you should NOT owe FICA taxes for this period.

Contact your employer and show him pages 48-49 of IRS Pub 519 (which can be downloaded from Internal Revenue Service) and ask that these improperly-withheld FICA taxes be refunded to you.

2) First, try to get the employer to refund the FICA taxes as noted above. If that does not work, delay filing and submit IRS Form 843 to recover the improperly-withheld FICA taxes FIRST. Once those taxes are recovered, then file jointly with your spouse.

If you have a joint refund due, you have until 15 April 2012 to file the return to recover the refund.

If you OWE money, file Form 4868 to request an extension until 15 October 2009, and submit a payment with this Form 4868 to cover whatever you would owe.

3) You can file jointly with your husband and CHOOSE to be treated as a resident alien for all of 2008. In doing so, however, you would make recovery of the improperly-withheld FICA taxes problematic.

You can file separately from your husband and file Form 1040NR or 1040NR-EZ as a non-resident alien, which will allow you to file Form 483 to claim a refund of the improperly-withheld FICA taxes.

It is impossible to determine which is the best option at this time, as I do nont know how much you or your husband has earned in 2008, nor in which state you currently reside, nor from which country you originate.

This is very very helpful. Thank you very much for you advice.

So what company has to do is fill out form 941 and 941C to submit to IRS. Also they have to make sure that my W2 is fill out right. That's all my employer has to do. Is that correct? Please advise if there is any other related documents.

Best regards,
Bee

Bee:

Yes, that is correct. Once the Frmn 941 and 941C are submitted, the employer should then refund you the improperly-withheld FICA taxes.

Dear Tax Expert,

I have another questions to ask. While I am on F1-OPT. What kind of expense I can use for tax deductable? (For example traveling expense or health insurance, etc.)

Best regards,
Bee

The most common expense I deduct for my clients are the MOVING expenses incurred from the university to the new city of employment.

Health insurance is NOT normally deductible unless you are being paid as an independent contractor under Form 1099-MISC.