[Rathan29]

Dear experts,
I am an international student and studying (F1) in the US for 4 years. My wife is also with me for last two years as a dependent of me. When I filed tax return last three years, I used Turbo tax. Last week, I realized that the Turbo tax only for resident people. So, I have made mistakes for last three years. Could you please guide me that what do I need to do now? Will it affect my OPT since I filed as a resident instead of non-resident?

Thank you so much, I really appreciate your help.

[MukatA]

How did you file your 2010 tax return? Did you file as single or married filing jointly?

[AtlantaTaxExpert]

Assuming you filed jointly, you have a SIGNIFICANT problem.

You filed incorrectly when you filed jointly with your wife. That is not permitted if you file as a non-resident alien.

However, once you file jointly and the initial April 15th filing deadline passes, the decision to file jointly is IRREVOCABLE, which means you CANNOT change even if the filing was illegal.

The IRS holds the IRREVOCABLE part as taking precedent over the rules that dictate you file as a non-resident. The ONLY time the IRS bends on this is if you can show that you were NOT LEGALLY MARRIED when you filed. THEN they will let you amend to SINGLE.

When I have tried to correct this problem for my clients, the IRS accepted the extra tax that resulted from the amendment, but they would NOT change their filing status to Married Filing Separately and thus, by implication, would NOT revert their status to non-resident alien.

In your case, you are now probably going to have to pay FICA (Social Security and Medicare) taxes on your OPT unless you can convince your employer to NOT withhold these taxes, because, in the eyes of the IRS, you ARE a resident alien even though you are on a F-1 visa.

[Rathan29]

Dear MukatA and Atlanta,

Thanks your prompt responses to my inquiries. In act, I filed as a single even though I married because my wife does not SSN.
Thanks again for your help.

[AtlantaTaxExpert]

Then you are in luck! You can fix the problem for each year by filing Form 1040X with a proeprly-prepared Form 1040NR or 1040NR-EZ PLUS Form 8843 attached to the Form 1040X.

On the FIRST page of the Form 1040NR or 1040NR-EZ, nedatly print the word "AMENDED" on the top of the page.

In the EXPLANATION section of the Form 1040X, ask the IRS to re-instate your non-resident alien status and request they waive all penalties and interest if you end up sending a check with the return. The ineterst MUST, by law, be paid, but they sometimes waive it if it is a small amount.

If you are from India, you can in fact claim your wife as a dependent IF she earned no money in the U.S. in the years in question. If that is the case, prepare Form W-7 and request an ITIN for her and submit it with the amendment.

If you want my professional help with these amendments, double-click on my title above and scroll down to my profile/signature. You will find my email address and websites there.