[intiha]

Hello,
I have been in USA since dec 2002, and in each year meeting the substantial presence test (SPT). After the first two years, I was able to file as a resident-alien for tax purposes and thus claim my wife and child on the tax form.


This year (2009) I graduated but got a job as a post-doc under the academic training extension to a J-1 visa. So, now while I am still a J-1 visa holder, i.e. my status hasn't changed, and I am working at the same university as I was studying, suddenly I am infor,ed my tax status can no longer be as resident-alien. Thus, not only is a significant amount of my paycheck being with-held, I won't be able to reclaim it as I will have to file a 1040NR!

The payroll department says it is some rule where I have to now consider the last 6 yrs of my presence and the first 2 yrs, after I entered are not counted (as they count towards the SPT? ) and so for both 2009 and 2010 I will remain a non-resident alien.

Now I harried the payroll dept a lot but they won't budge (or be clearer than what I mentioned above). I want to know what are my options? Can I file as a resident alien even though my W-2 was submitted differently? I am willing to pay for advice and even willing to meet/call the person (I am in losangeles area).

Thanks.

[MukatA]

On J1 visa you are exempt from residency for only two years. For 2009 and 2010, you can not file non-resident tax return and can not claim any treaty deduction as researcher. Your employer must withhold SS tax and Medicare tax as required for residents.

You can only claim treaty benefit for the second time only if you were resident of your own country between two different J1 visas.

AtlantaTaxExpert has better experience in this field. Ask for his opinion.

[AtlantaTaxExpert]

Intiha:

For the 2004, 2005 and 2006 tax year, you should have filed as a non-resident alien, because, as a student on either a J-1 or F-1 visa, you were exempt from the Substantial Presence Test. You should amend the returns for those years and submit a properly-prepared Form 1040NR or 1040NR-EZ plus a Form 8843.

That exemption expired on 31 December 2006, so for 2007 and 2008, you were considered to be a resident alien for tax purposes. For those years, your resident alien filing is okay.

Now, under your new J-1 visa, you are still a resident alien, because you have already used up the five-year exemption allotted to the F-1/J-1 student status.

Now, the position your university is taking MAY be based on a provision in the tax treaty between the United States and your home country. I cannot say for sure as you did NOT identify your home country, but, off-hand, I suspect you are still a resident alien.

Once you identify your home country, I can research the issue and give you a definite answer. If we jointly decide that you are a resident alien, your university cannot force you to file as a non-resident alien.

If you want a private consultation, email me at [email protected].