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koba58 · Mar 29, 2008, 01:10 PM

Hi all:

Here is our situation. I had been on F-1 from Sept of 2002 and graduated in Jan of 2007. I worked on OPT from Feb, 2007 and my status changed from OPT (F-1) to H-1B in Nov of 2007. BTW, my employer has withheld social security tax and medicare tax for the entire time that I have been on OPT and H-1B. My wife, who came to the US with me in 2002 on F-2 has switched to F-1 in 2006 and has been on F-1 all year in 2007. She did have income in 2007. It seems like I need to file as a dual status but I have also read that there is a way to file as a resident (and file jointly with my wife) if I file for an extension right now and wait till my status bchanges to resident status.

Can someone help or make suggestions on which form I should use if I need to file tax right now?

I am really really lost...

Thanks...

The Texas Tax Expert · Mar 29, 2008, 02:03 PM

You should in fact be filing as a resident because you were on F1 longer than a 5 year period. That would also be why your employer has withheld FICA for the 2007 period. So for 2007 you should file a resident return. Your best bet is likely for you and your wife to file a joint return.

avnish · Mar 29, 2008, 02:16 PM

Hi The Texas Tax Expert,
Does his wife needs to pay back FICA taxes on the income in 2007 -- since she was on F1, her FICA must not have been withheld, As she is filing MFJ by electing to be treated as resident?

The Texas Tax Expert · Mar 29, 2008, 02:18 PM

If his wife is F1 she is probably a student working on campus in which case no FICA should be withheld.

avnish · Mar 29, 2008, 02:22 PM

Thanks a lot.. this is the most quick response. Just your thoughts on below would be greatly appreciated.

Student on F1 may also work during summer internships with cirricular practical training and no FICA is withheld -- I guess they also don't need to pay back FICA if they elect to be treated as resident in MFJ with resident spouse.

I get conflicting answers on this from IRS.. once I called IRS they said I need to pay as after election I would be treated as resdident, other time time I called they said that since I'm making this election this year (2008) I don't need to pay back SS taxes for income in 2007 as I was on F1.

koba58 · Mar 29, 2008, 02:27 PM

Wow... this is great. Thanks for the answer, the Texas Tax Expert and also the follow-up question, avnish!!
Just to clarify one thing, if we jointly file the tax for 2007 would that mean that FICA would be withheld from my wife's income in 2008 (off campus employment)? She did have a on-campus job in 2007. Thanks so much for the clarification!!

The Texas Tax Expert · Mar 29, 2008, 03:23 PM

koba58, your wife would not be exempt for off-campus work because she has also exceeded the 5 year period (since she was also on an F visa from 2002).

avnish, the answers that you have been given seem confused. I assume that the IRS thought you were making the election for 2008 (but you were making it for the 2007 year). The answer to your question is not entirely clear.

koba58 · Mar 29, 2008, 04:21 PM

One last question, Texas Tax Expert:

Do we owe FICA tax for my wife's on-campus employment in 2007 if we file jointly as residents? Thanks so much for your help again!

avnish · Mar 29, 2008, 04:25 PM

Sorry if my answer was confusing.

Situation is that I am, FIRST TIME, electing to be treated as resident while filing MFJ in 2008 for year 2007 tax filing. I have been on F1 since 2006, and FICA WAS NOT WITHHELD in 2007 summer internship income.

Once, IRS told me that I need to pay back my 2007 FICA if I make election.. next time, another IRS told me that I Don't NEED TO PAY BACK FICA on 2007 income since I am making election NOW in 2008

So, I would appreciate your suggestion on this.. do I need to pay back FICA on 2007 income, if I make election now.

The Texas Tax Expert · Mar 30, 2008, 11:51 AM

Originally Posted by koba58

One last question, Texas Tax Expert:

Do we owe FICA tax for my wife's on-campus employment in 2007 if we file jointly as residents? Thanks so much for your help again!!

If your wife is a student enrolled and taking classes and she also works on campus, she should generally not have to pay FICA on those earnings. This has nothing to do with being resident or non-resident.

The Texas Tax Expert · Mar 30, 2008, 11:53 AM

Originally Posted by avnish

Sorry if my answer was confusing.

Situation is that i am, FIRST TIME, electing to be treated as resident while filing MFJ in 2008 for year 2007 tax filing. i have been on F1 since 2006, and FICA WAS NOT WITHHELD in 2007 summer internship income.

Once, IRS told me that i need to pay back my 2007 FICA if i make election.. next time, another IRS told me that i DONT NEED TO PAY BACK FICA on 2007 income since i am making election NOW in 2008

So, i would appreciate your suggestion on this.. do i need to pay back FICA on 2007 income, if i make election now.

Avnish, there is some debate on this issue. Some people claim that the way the law is written permits you to make the election for income tax but not for FICA. I don't know for certain how the IRS interprets it.

avnish · Mar 30, 2008, 12:00 PM

Hi Texas Tax Expert,
I am a student and taking classes on campus -- & worked during summers 2007 (internship) off-campus on F1-CPT (Cirricular practical training).. do I need to pay back FICA for 2007 if I elect to be treated as resident with resident spouse.

avnish · Mar 30, 2008, 07:45 PM

Thanks Texas Tax Expert for your answer,
As I'm making election to be treated as resident, and we are required to attach a statement in this regard, is it possible that we do e-filing for returns and send this statement only through mail.. as alternative of sending all returns by mail may take time to get return.