Hi Tax Experts, I am a Chinese. I came to US on 5th April 2010 on J-1 visa. Last year, I spent 4 months in China and 8 months in Japan. Our Foreign National Tax Technician told me that I cannot benefit from tax treaty between US and China, because I stayed the major of last year in Japan. She also told me I can benefit from tax treaty between US and Japan. I am just wondering whether this is correct. Thank you very much.

Liu:

What country were you in when the J-1 visa was issued? If Japan, what was your status in that country (visitor, student)?

Thank you for your message.
My J-1 visa was issued in Japan. When I was in Japan, I worked for the university. The status was professor.

If you were considered a resident of Japan when the visa was issued, then the Japan-U.S. tax treaty applies.

However, if you status as a professor made you a NON-resident of Japan (similar to how the U.S. treats visiting porfessors), then your residency remains with China and the U.S.-China Tax Treaty would apply.

I also told Our Foreign National Tax Technician this. But she said that there is a rule in US-china treaty. She said although I am a citizen of China, I spent 365 days in Japan and I entered US directly from Japan, I must be consided as a resident of Japan. She also said that if I want to get the US-China treaty, I should write a letter to IRS. If the IRS told me that I can get the US-China treaty, she will help me to apply.

Again, the key issue is your resident/non-resident status while in Japan, and that is driven by your visa status and the purpose of your visit.

As a visiting professor in the U.S. you would be considered to be a non-resident if you came under a J-1 visa. If the Japanese government treated you as a non-resident, then the status applies for your visit to the United States and the U.S.-China Tax Treaty applies.

Thanks for your answer.
Because our Foreign National Tax Technician persists in her interpretation and taxes my income, the only thing I can do is file Form 1040NR with Form 8833 and request a total refund of all federal and NC withholding taxes under Article 19 of the U.S.-China Tax Treaty from IRS.
Is that right?

That is correct, and I am not surprised by the institutional interpretation. I have run across such intransigence in the past.