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wueq · Mar 12, 2007, 08:10 AM

Hi all,

My H1B took effect from the end of Nov. 2006. But My employer forgot to withhold my FICA tax until 2007. Does this affect my tax status (resident or non-resident). I asked an accountant, she said if I want to file as resident, I have to pay this FICA myself. Is it true?

Thanks

Michael

taxsearcher · Mar 12, 2007, 08:27 AM

If you have an H1B you have to pay the FICA irrespective of filing status. This needs to be fixed and you should take it up with your employer.

If you were previously on F1/OPT then the FICA and if the FICA was not withheld because of your non-resident status, this is a different issue. ATE and I have different interpretations. In my view, you become liable for FICA on your OPT income if you choose to file as a resident. You must at very minimum notify your employer. It may even be appropriate to file a Form 4137 (but note on the form that it is not tips but FICA not paid on wages).

I will let ATE add his interpretation.

wueq · Mar 12, 2007, 08:59 AM

Thanks Taxsearch.

Actually, I have posted my situation on another post:
My H1B took effect 11/26/2007, before that, I was on OPT and F1
Currently, I have completed my filing using NR, but I found I can not claim my tuition that has $2000 tax credit. So I am thinking if I can file as resident. I can not pass SPT, but can I use first year choice?

Can you take a look at my case and give me some suggestion.

Thanks

Michael

AtlantaTaxExpert · Mar 13, 2007, 11:16 PM

Michael:

My interpretation is that once the calendar year ends, the employer will not go back and require you to pay back FICA taxes if you decide to file as a resident alien. Too much trouble and not in the spirit and intent of the law.