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    snafsnarez's Avatar
    snafsnarez Posts: 2, Reputation: 1
    New Member
    		  
    #1

    Apr 16, 2007, 02:32 PM
    F-1 NR exemption exceeded, how to pay FICA?
    Hi experts,

    I had two quick tax questions:

    1. I am on F-1 and have always been a nonresident filer, but this year it seems I have to become a resident filer, as I have been in the U.S. more than 5 years. However, last year I was unaware of the 5-year rule and did not have FICA withheld by my previous employer (for whom I don't work anymore). Is there a way to pay my portion of uncollected FICA tax via my 1040? Also, I was wondering what happens to the employer. I should probably contact them, but can they demand that I pay both halves of FICA taxes myself since I originally told them I was a nonresident and the didn't withhold anything?

    2. If that is too complicated, should I just file as a non-resident again and claim the exception based on the evidence I don't want to permanently reside in the U.S. I could do that as well, but was wondering:
    a) what if IRS rejects my claim for an exception to the substantial presence test. Will they say just to refile via 1040? Are there penalties/audits automatically involved?
    b) even if they grant the exception, what would happen if in the year afterwards I do decide to reside in the U.S. and switch to the resident taxpayer status. How would IRS react?

    Thanks a lot, I asked a lot of people these questions, and it seems this is the only forum where they could be answered!

    -Snaf
    AtlantaTaxExpert's Avatar
    AtlantaTaxExpert Posts: 21,836, Reputation: 846
    Senior Tax Expert
    		  
    #2

    Apr 23, 2007, 01:48 PM
    1) Worry not about the uncollected FICA taxes. The IRS holds the EMPLOYER responsible in such matters, n0t you. Besides, there is NO WAY for you to pay the back taxes, as they MUST be paid through the employer. The employer can demand that you pay these taxes all he wants, but he has NO LEGAL STANDING to take you to court to enforce those demands.

    2) You MUST file as a resident alien (which probably will result in a lower tax), regardless of the FICA tax issue.
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