[sachin2006]

Hi Tax experts,

I have a question regarding Social Security and Medicare Tax during F1-OPT .

July 2000 - Dec 2002 - F1 Visa
Jan 2003 - Dec 2003 - OPT
Jan 2004 - Present - H1B Visa

My employer deducted Social Security and Medicare taxes during my OPT period.In Nov 2006 ,I found that I can get refund for my SS and Medicare withheld during my OPT .

Now my employer says that I am a resident alien since I lived more than 183 days during the year 2003 in the USA.So I don't qualify for SS refund.

But according to IRS pub 519 ,Iam a non-resident alien if I am in F1 Visa .Also it states that I need to file Form 8843 to claim exempt status .I did not file this form 8843 during filing my 2003 return since I was not aware of this .

My question is do I need file Form 8843. If yes ,can I do it now .

What other steps I should take to get the refund


Thanks for your help

[AtlantaTaxExpert]

No, your employer is wrong. In 2003, while on OPT, you were still covered by your F-1 visa and was a non-resident alien. The time under the F-1 visa does NOT count toward the 183-day Substantial Presence Test.

Do not worry about the Form 8843. It should have been filed while you were on F-1 visa status, but now it is irrelevant.

However, you DO want to file Form 843 and claim a refund for the Social Security and Medicare taxes taxes incorrectly withheld in 2003. You must file this Form 843 by 15 April 2007, or you forfeit the right to claim this refund.

Review pages 42-50 for how to file for the refund using Form 843.

If you want my professional help to file this form, contact me at [email protected].

[sachin2006]

Thanks for the quick reply.I will try to get with my employer or I will email you to file the Form 843 .

Thank you

[AtlantaTaxExpert]

You will need to get a letter on your employer's letterhead stating his refusal to refund the Social Sceurity and Medicare taxes. This is one of the support documents that must be filed with Form 843.

[taxsearcher]

ATE is right that you do not count days on F1 toward the 183 days in determining residency.

However, you are required to have filed an 8843. You probably would not lose your non-residency status because of this (although that may be a technical possibility). On the other hand if you go for your green card then you are supposed to have been in compliance with the tax law while non-resident, such as filing tax returns etc.

I don't think it is likely to create a disaster for you if you don't file it but there might be value in going ahead an filing the 8843 anyway. There's really no cost to you, as far as I can see, and then you would be in compliance if the question ever did arise.

[sachin2006]

Hi Tax searcher,
I filed

2000 -1040 NR
2001 -1040 EZ
2002- 1040
2003-1040A


I did not file 1040 NR except 2000.Do I need to refile all of this now ?The tax consultant was not aware of this OPT rules and she filed me as resident alien.

Thanks

[taxsearcher]

The tax consultant made a big time error. I would go back to the tax consultant and ask her to put this right. She needs to sort this out for you and give you back whatever fees that she charged you (at the minimum). Because of the statute of limitations, there are limits on filing amended returns. Don't waste any time in getting back to your consultant and asking her to resolve this to the extent that it is still possible.

In 2003 you should have been filed as a NR. The social security taxes should not apply.

[AtlantaTaxExpert]

Agree with TaxSearcher. You need to go back to the tax preparer for tax years 2001 through 2003 and have her file amendments for those years switching you back to non-resident status. It's a bit of a pain, but it will get you back in compliance, which MUST be done if you want to claim a refund for the Social Security and Medicare taxes withheld in 2003. Get cracking on these amendments immediately, as the tax person is about to enter into her busy season and you have a definite deadline in filing the Form 843.

She can also file the Form 8843 for each year to meet the compliance issue, though I do not think it will be a problem long-term.

[sachin2006]

Thanks a lot ATE and Taxsearcher

[AtlantaTaxExpert]

Glad to help!