[naveenck]

Hi,

I am Indian Citizen and stayed in the USA between Aug 2008 and Aug 2009 as mentioned in the following break-up:

1. Aug 31st - Dec 31st 2008 on B1 VISA - 123 days
2. Jan 01st - Feb 26th 2009 on B1 VISA - 57 days
3. Apr 08th - May 31st 2009 on L1 VISA - 54 days
4. Jul 05th - Aug 10th 2009 on B1 VISA - 37 days

For determining my status for tax purposes as a resident or non-resident, IRS mentions the substantial presence test as follows:

Substantial Presence Test


You will be considered a U.S. resident for tax purposes if you meet the substantial presence test for the calendar year. To meet this test, you must be physically present in the United States on at least:

1. 31 days during the current year, and
2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
* All the days you were present in the current year, and
* 1/3 of the days you were present in the first year before the current year, and
* 1/6 of the days you were present in the second year before the current year.

Hence applying the above calculation to my data: 148 days in 2009 + 41 days (123/3) in 2008 = 189 days which is greater than 183 days required for determination as Resident alien for Tax purposes.

I have two questions:

1. Is my calculation correct and if yes, Can I file 1040EZ
2. Is my stay on B1 VISA considered for the calculation of substantial presence test because IRS mentions the following rules for exemption:

Exempt Individual

Do not count days for which you are an exempt individual. The term "exempt individual " does not refer to someone exempt from U.S. tax, but to anyone in the following categories who is exempt from counting days of presence in the U.S.:

* An individual temporarily present in the United States as a foreign government-related individual
* A teacher or trainee temporarily present in the United States under a "J " or "Q " visa, who substantially complies with the requirements of the visa
* A student temporarily present in the United States under an "F, " "J, " "M, " or "Q " visa, who substantially complies with the requirements of the visa
* A professional athlete temporarily in the United States to compete in a charitable sports event

There is no mention about B1 VISA in the exempt list which makes me understand that number of days on B1 is considered towards substantial presence.

Kindly answer the question elaborately to clear my dilemma.

Thanks in advance,
NCK

[MukatA]

Yes, you will file resident tax return for 2009.

[naveenck]

Hello MukatA,

Thank you for your patience and kind answer.

Best Regards,
NCK