[yobujji]

Hi, I am still very confused after browsing through so many questions on this topic. This is my situation.

1. I am on H1-B visa and a resident alien for tax purposes for 2010.
2. My wife was a student and was on F-1 visa for the whole year of 2010. She has 3 W2s. She worked for company A from Jan1-Jan15 as an intern using her CPT. Company A did not withhold any FICA taxes. She was in school from Jan till August and had assistantship from school and no FICA taxes were withheld too. She started to work fulltime for Company B from August till end of year. Company B had withheld FICA taxes for her. She got her F-1 OPT in August before she started to work for Company C.

We are planning to file Married filing jointly and she is electing the option to be treated as a resident alien. In fact, we had filed MFJ for tax year 2009 too.

My questions are:

1. Should company C have withheld FICA taxes for her? If not, how do I we get that money back? Does that have any bearing on our filing federal tax return by April 18th, 2011.
2. If she should have paid FICA taxes for the whole year, should company A and her school have withheld that from her pay? How can we go back and pay that?

Experts please clarify and appreciate all the help.

[AtlantaTaxExpert]

For 2010, your wife was EXEMPT from FICA (Social Security and Medicare) taxes due to her F-1 visa status, so the employers that did NOT withhold the FICA taxes were correct.

As for one employer who DID withhold those taxes, your wife needs to contact them and ask that they refund the FICA taxes that were withheld. That is the preferred method of recovering those taxes, and the IRS insists that you do before any other refund option. If the company refuses, your options are as follows:

1) If you have already filed your 2010 tax return and filed jointly, then your wife CANNOT recover the FICA taxes. Her filing jointly with you will prevent her from successfully submitting Form 843.

OR

2) If you have NOT YET FILED, then your wife can file BY HERSELF, filing as a non-resident alien. Once the return is filed, she can then submit Form 843 and 8316 to claim a refund of the improperly-withheld FICA taxes. Once she has recovered the FICA taxes, then (and only then) can you then amend the 2010 return and have you both file jointly.

If you need professional help filing your return, email me at [email protected] or [email protected].

[yobujji]

Thank you very much AtlantaTaxExpert. I have been quite confused about the FICA taxes for my wife as IRS had not been very clear about the withholding in their website. I found conflicting information at two different locations.

1. http://www.irs.gov/businesses/small/international/article/0, id=96370,00.html
Paragraph 2 clearly states that the spouse may still be treated as a nonresident alien for the purpose of withholding Social Security and Medicare tax.

But, here
2. http://www.irs.gov/businesses/small/international/article/0, id=131635,00.html
Under F-visa exemptions, the last bullet says that "The exemption does not apply to nonimmigrants in F-1,J-1,M-1, or Q-1/Q-2 status who become resident aliens for tax purposes." I Wonder if IRS is referring to F-1s who become RA by way of being in the US for > 5 yrs or so and hence becoming an RA.

[yobujji]

Thank you very much AtlantaTaxExpert. I have been quite confused about the FICA taxes for my wife as IRS had not been very clear about the withholding in their website. I found conflicting information at two different locations.

1. http://www.irs.gov/businesses/small/international/article/0, id=96370,00.html
Paragraph 2 clearly states that the spouse may still be treated as a nonresident alien for the purpose of withholding Social Security and Medicare tax.

But, here
2. http://www.irs.gov/businesses/small/international/article/0, id=131635,00.html
Under F-visa exemptions, the last bullet says that "The exemption does not apply to nonimmigrants in F-1,J-1,M-1, or Q-1/Q-2 status who become resident aliens for tax purposes." I wonder if IRS is referring to F-1s who become RA by way of being in the US for > 5 yrs or so and hence becoming an RA.

[AtlantaTaxExpert]

You are correct; the IRS is NOT very clear.

However, I am clear. If your wife filed jointly with you in 2010, the ONLY way you can get her FICA taxes back is through the employer. Any submission of Form 843 will be rejected as soon as they determine she filed jointly.