Hi, I would need your help on this one.
I was holding a F1 visa last year. I worked for the last couple months under OPT in 2010. I just realized I should filed 1040 NR for last year. But I filed 1040 through Freetax USA.
This year, I am filling form1040NR.
My questions is, should I amend last year's tax return? I did get a refund about $1K because of some tax credits (Make work pay and EIC).
I have been doing research on the web site, some people said that most non-resident alien have the option to file as resident alien. Is that true?
Can I just not amend last year's tax return if I can choose to file 1040 last year.
Thank you!

Whoever said that most non-resident aliens have the option to file as resident aliens do NOT know what they are talking about.

Now, many foreign nationals who are here on work visas CAN and DO file as resident aliens, either because they HAVE to or because they CHOOSE to, but, by definition, as non-resident alien MUST file a non-resident return (Form 1040NR or 1040NR-EZ).

You need to amend the 2010 return, filing Form 1040X with a properly-prepared Form 1040NR-EZ (with the word "AMENDED" printed on the top of the first page) PLUS Form 8843. The state tax return probably does NOT need to be amended.

When you file this amendment, you will return BOTH the Earned Income Credit AND the Making Work Pay Credit, because, as a non-resident alien, you were NOT entitled to these credits.

If you come forward voluntarilty, you may get by by just returning the credits you received. If the IRS comes looking for you, interest and some pretty hefty penalties will be assessed.

If you want my professional help, double-click on my title above and scroll down to my profile/signature. You will find my email address and websites there.

Thank you very much!

While filling out 1040X, should I leave the number lines on page 1 blank? Even I do have to return Make work pay and Earned Income Credit for 2010 ?

SInce I filled out the wrong form for 2010, I did not claim the FICA tax withheld for 2010 and also the tax treaty. While filling 1040X to amend the tax return, I am also going to fill out form 843 form 8833. Is this OK? Do I attach all these forms with 1040X or mail them separately?

Last question:
When filling out 1040NR-EZ, should I subtract the 5000 from the gross income (from W2), then enter the number into Line 3 ? Or I just write down the gross wages as it is of W2?


Thank you!

FICA (Social Security and Medicare) taxes are NOT addressed on the annual tax return UNLESS you over-pay Social Security due to multiple jobs.

Form 843 and 8316 are submitted SEPARATE from the annual income tax return.

Do NOT leave the lines on Form 1040X page 1 blank.

If $5,000 is the treaty exemption allowed for your country under the tax treaty, then subtract that amount from the W-2 wages, and put the difference in Line #3 of the Form 1040R-EZ.

Hi,Atlanta TaxExpert:

Thank you for your help!
I do need to claim the FICA withheld for 2010 while filling the correct form, since I was F1 during the whole year of 2010, I would been exempt from FICA tax. But my employer withhelt it anyway. So I will mail form 843 and 8316 separate with 1040X and 1040NR-EZ.
I still can claim Tax treaty(by filling 8833) for the year 2010 with the 1040X and 1040NR-EZ, correct?

About filling out the number line on 1040X. I recall the 1040X instruction says that "for resident and nonresident alien: if you are amending 1040NR or 1040NR-EZ; or filling the correct return: fill out the personal information on page 1; do not fill out any other information on page 1; also do not fill part 2 and part 3 on page 2; explain why you fill 1040X and attach a correct 1040NR form".
So, I am confused between your answer and the instruction.. Is it because I have to return the refund that you suggest I fill out the number line?

Thanks!

Submission of Form 843 and 8316 is a separate process, sent to a completely different address, than the federal income tax return. BTW, FIRST you must try to get the refund from your employer. The IRS requires this, and it IS faster than submitting the Form 843.

You should be able to claim the treaty exemption (if you are from China), but Form 8833 will NOT be needed if you were F-1 the entire year. Just cite the treaty on page #2 of the Form 1040NR-EZ.

You are NOT amending Form 1040NR or 1040NR-EZ; you are REPLACING Form 1040 with Form 1040NR-EZ. That is why you need to complete the number lines on the Form 1040X.

You MAY have to return some of the refund, but with the $5,000 treaty exemption, probably NOT, because you can claim the state income taxes withheld as an itemized deduction.


If you want my professional help with EITHER the amendment OR the FICA refund request, double-click on my title above and scroll down to my profile/signature. You will find my email address and websites there.

Hi,Atlanta TaxExpert:

I have a question about the almost same thing.
I got my permanent card this year. Last year I filed my tax 1040 using taxact software.
I paid Social Security and Medicare Tax last year. My employer treated me as other employee. I didn't know I subjected to file different form 1040NR.
I didn't receive any refund from Federal but I received $1 refund from state.
if I file amended 1040x, am I going to get any refund? I heard that I can get refund for SS and Medicare. Is it worthy to claim?
Please advice. Thanks

If you have already filed as a resident, you have ZERO chance of getting a refund of the Social Security and Medicare taxes.

However, if you apply for a green card, you WILL have to amend the 2010 tax return to file as a non-resident alien.

Atlanta, Vivian is correct. She does not complete amounts on F1040X, in her case. Even if she's replacing the form 1040 for a 1040NR.

The instructions state... "To amend Form 1040NR or 1040NR-EZ, or to file the correct
return, do the following..." (Page 4, 1040X inst. Rev Dec. 2012)

The instructions that follow are exactly the same for amending a 1040NR or filing the correct form. Which advise- enter no amounts.

I know that is what the instructions say to do.

The instructions also say that the Form 1040x is the only form that needs to be signed when submitting the amendment.

Unfortunately, I have had amendments rejected because of no amounts on the 1040x or because of no signatures on the attached Forms 1040nr or 1040nr-ez.

Practical experience is a hard teacher, so I complete the 1040x and sign the support documents EVERY time.