[Julia Smith]

I have been on an F-1 visa since 2005, and have since benefitted from the US-German tax treaty. Due to a previous visit to the US, I have also become a resident alient under the five-year rule.

As the US-German tax treaty allows only a four-year stay in the US--after 4 years the taxes have to be repaid for the 4 years--I have left the US in the summer of 2009. [BTW, the last three months of my stay in the US, I did not have any income.] I was told (not sure how "officially") that if I reenter the US on an F-1 visa within a year of having left the country, the benefits of the tax treaty would have to be repaid; afterwards I would be free to reenter without having to repay anything. If I were to enter, however, on a new visa (e.g. on an H1B) within this year, no tax benefits would have to be repaid either.


Now I got a scholarship/fellowship for summer 2010, at a different school and for a different program. This would require me to reenter the US on an F-1 visa... within one year of having left the country last summer.

My question is: Do I have to pay back all benefits if I take that course?

1.) Where does the one-year rule come from? I haven't yet found it in the treaty or elsewhere.
2.) Does it make a difference if I apply for a "new" F-1 for summer? Would this still count as violating the one-year rule and thus require me to pay back the benefits?
3.) Is there an option of attending the course without applying for an F-1? As a full-time student, I probably have to, but just checking!
4.) Does it make a difference if I *have* an F-1 (i.e. applied for it and everything--i.e. being legally allowed to study full-time), but then *enter* on a tourist visa (i.e. tell the border official that I want to enter on a tourist visa)? Yes, desperation makes me grasp for straws... :)
5.) The IRS website says about the Germany-US treaty for students:
"If the individual's visit exceeds 4 years, the exemption is lost for the entire visit unless the competent authorities of Germany and the United States agree otherwise."(*) - Who exactly are these "competent authorities" and what would be necessary to ask them (paperwork? )? And what would be necessary to convince them to "agree otherwise," i.e. are their known cases of exceptions, is it all up to my own persuasion skills, or what else?
6.) Do you have any other ideas how to solve this issue creatively? :) The situation simply doesn't quite look like the treaty conditions were intended for it: e.g. that I did not know about the scholarship last summer--else I would simply have left the US a bit earlier... that it's not a long-term stay, but just for summer... also, the amount of the scholarship will probably not or not much exceed my tax benefits--so coming for a scholarship would mean I simply pay that scholarship to the IRS and still have to cover the summer course all by myself... and so on.

(*) http://www.irs.gov/publications/p901/ar02.html#en_US_publink100051492

[Julia Smith]

Oops, I've just realized that the five-year rule issue may have changed for 2010... if it's relevant to the question, please let me know and I'll try to find out. (If it should be relevant and you happen to know where I can find the respective laws, a link would be appreciated.)

[AtlantaTaxExpert]

Julia:

For some reason, no one else seemed willing to address your issues.

Do you still need help?