[fan2357]

Hi,

I'm a Chinese citizen and came to the US on F1 visa in Sept 2001, then spent 5 years in PhD study. In August 2006, I became an assistant professor at a university. I got my green card in Sept 2008. My question is -- can I still get exempted from tax for the period of Aug 06 to Sept 08, under the US-China tax treaty, article 19?

Article 19 (Teachers, Professors and Researchers) says -- An individual who is, or immediately before visiting (USA) was, a resident of (China) and is temporarily present in (USA) for the primary purpose of teaching, giving lectures or conducting research at a university... in (USA) shall be exempt from tax in (USA) for a period not exceeding three years in the aggregate in respect of remuneration for such teaching, lectures or research.

I know that before I became an assistant professor, I had been in the USA as a student for 5 years when I claimed exemption under article 20. However, article 19 says "immediately before VISITING USA, was a resident of China...", ", (not "immediately before BECOMING a professor in USA, was a resident of China... "). So my understanding is that I still qualify, because immediately before visiting the USA (Sept 2001), I was a resident of China.

Also, although now I have green card, I was on either OPT or H1b from Aug 06 till Sept 08. So I should be regarded as "temporarily present" during that period. And that period was less than 3 years.

Can any expert help me with this? Thanks

[AtlantaTaxExpert]

Negative.

When you got the Green Card, you forfeited all rights under the tax treaty and must pay taxes just like any U.S. citizen.

[asking]

This is retroactive?

[AtlantaTaxExpert]

Yes, for the 2008 tax year!

[asking]

2008, I can understand.
But I thought Fan was also asking about 2006 and 2007.

[MukatA]

F1 is student visa. For Teachers, Professors and Researchers there is J1 visa. On F1 you can not get treaty benefits meant only for J1 visa.

[AtlantaTaxExpert]

Now I understand what you were asking.

I assume he filed as a non-resident alien for 2006 and, at the time, that was probably the correct way to file under "maintaining a closer connection to his home country." However, that argument became moot when he filed for the H-1B visa, because submitting for sucha visa clearly shows NO closeer connection.

So, for 2006 and 2007, he should NOT have claimed the $5,000 treaty exemption authorized under Articles 19 or 20. To be legal, he should go back and amend his returns for those years, filing as a resident alien and "unclaiming" the $5,000 treaty exemption.

Whether he does so or not is entirely up to him.