[blmadhavan]

I was a J1 Exchange Visitor Research Scholar from India at New York City. Basing on the Indo-US Tax Exemption treaty (if I am correct, it is article 22), I am exempt from tax payment of any form if my physical presence in USA is less than 2 years (or for the first 2 years). Since I came to USA on October 21, 2009 and last present on September 30, 2011, I am physically present in USA for less than 2 years. For the year 2009, I got refund of tax with-holding as my income did not cross the taxable limits without need for claiming the tax treaty exemption. For the year 2010, I was exempt from tax with-holding basing on the treaty. For both these years, I have filed the respective tax forms duly in time. For the year 2011, my employer has with-held tax for the period of my stay in 2011 (i.e. until September 30, 2011). Please note that I am physically present in USA from the date of my arrival (October 21, 2009) till the last day (September 30, 2011) completely without any break. I have returned to India because my program is completed in USA. I have received my W-2 form for my earnings for the year 2011 from my employer in USA. Now my queries include:

(1) Since I am not in India and my program is finished in USA, Do I need to file the applicable tax forms as I did for the previous years of my stay in USA?

(2) Am I eligible to obtain refund of the with-held tax amount from my earning for the year 2011 basing on the Indo-US Tax Exemption treaty (article 22)?

(3) If eligible, how can I claim the same and which forms need to be submitted?

(4) My brother is staying in California. Can I authorize him on behalf of me to file my tax returns? Can you please indicate me the exact forms that I need to file in case I am eligible to get the total refund of the with-held amount?

(5) If not eligible, do I still need to file the tax forms for any eligible refund? Please indicate the forms I need to file and the addresses (Federal & State) to which I need to submit the same?

I would appreciate if someone can clarify my queries.

Thanking you in advance.

Maddy

[MukatA]

Did you file your 2009 and 2010 tax return as nonresident and Form 8843?
File your 2011 tax return (resident return) and claim exemption under tax treaty.

[AtlantaTaxExpert]

I have to disagree with MukatA on this one. Since the original poster (OP) came and left within the two-year period, he/she will file Form 1040NR and Form 8843 because he/she was NOT subject to the Substantial Presence Test until AFTER 30 September 2011, at which time he/she had left the United States. Form 8833 may also be needed to properly claim the treaty exemption.

New York is one of the few states that honor tax treaties, so the OP can also file New York Form IT-203 as a non-resident and, if state and/or city income taxes were withheld, request a complete refund. Support documents MAY need to be mailed to the NY state tax department to explain his/her situation.

While exempt from federal and state INCOME taxes, the OP became liable for FICA (Social Security and Medicare) taxes starting on 1 January 2011. If those taxes were withheld, the OP cannot get them back. If they were NOT withheld, it is not a concern for the OP since the employer is held responsible for payment of the FICA tax.

If you want your brother to file your return, you must give him Power of Attorney (POA), which, for the federal tax return, is Form 2848. Not sure what the NY state POA form is.

If you need help filing your return from India, this IS what I do! It is a bit more complicated than filing from the U.S. but it CAN be done. If interested, double-click on my title above and scroll down to my signature to get my email address. Once I received your email, I will explain the process in detail.