[Haywire99]

Hi!

1. I worked for my current employer under OPT from MAY 2007 to OCT 2007. On OCT1st my H1B was approved. I didn't get it stamped until JAN 2008. Because my status changed in OCT 2007 I filed my 2007 taxes as a Resident (1040). I read a response to a similar question by Atlanta Tax Expert and came to know that I must have filed a 1040NR. Is this correct?

2. During my OPT days with my employers they erroneously charged me Medicare and Social Security Taxes (between May 07 and Oct 07). I filed a Form 843 with the required documentation to get that back but they have responded saying that since they don't find a 1040 NR filing in 2007, they can't refund those taxes to me.

I have tried asking my employer to return the money but I can't get through the wretched Human Resources and talk to someone who understands this.

What should my next step be?

[AtlantaTaxExpert]

1) Yes, that is correct. On 31 Dec 07, you had NOT YET met the Substantial Presence Test, so you should have filed either Form 1040NR or 1040NR-EZ plus Form 8843 one last time.

2) That is the typical IRS response when you file as a resident alien, then apply for the FICA tax refund.

You first need to amend your 2007 tax return, attaching a properly-prepared Form 1040NR-EZ and Form 8843 to Form 1040X and specifically request that they reinstate your non-resident alien status for 2007.

Once the amendment is processed, then you can re-submit Forms 843 and 8312 to request the refund of the FICA taxes.

If you need professional help to do this, email me at [email protected].