[zulu17]

Ok.. I had filled out 1040 EZ by mistake instead of 1040 NREZ. I am currently on H1 B since Oct 2007. Before that opt since Jan 2007.
Now when I calculated I found that I am getting the same amount of refund from 1040 NREZ that I am currently going to get from 1040 EZ. Do I still make an amendment?

Also I need to fill out 843 & 8316 for refund of my FICA taxes. How long should I wait before I file for that?


Thanks,
Praveen

P.S: Do I need to file 8843 as well?

[AtlantaTaxExpert]

Praveen:

Yes, you DO have to correct the error, because even though you have paid your taxes, you have NOT filed correctly, and that is ONE of the questions they ask when you apply for a green card. Do you want to risk being denied a green card over that kind of technicality, especially if it can be easily corrected?

Complete Form 1040X and ask on page 2 for the IRS to restore your non-resident alien status for 2007.

Attach a properly-prepared Form 1040NR-EZ (with the word "AMENDED" print on the top of the first page) to the Form 1040X.

Also attach Form 8843, which must be submitted ONE LAST TIME.

As for the FICA tax refund, you need to do the amendment FIRST, and get an acknowledgement of acceptance of the amendment from the IRS BEFORE you file the Form 843.

You first need to ask your employer to refund the improperly-withheld FICA taxes. Note that you became liable for FICA taxes the day you started on the H-1B visa.

When they say no (which they will because the tax year has closed), get that refusal in writing, preferably on company letterhead. That refusal memo will replace the Form 8316. You then complete the Form 843 and submit it, the refusal memo and the other support documents specified on page 49 of IRS Pub 519.

One last word: the refund requested by Form 843 is NOT guaranteed. The IRS evaluates each request on a case-by-case basis. I have had two virtually identical cases submitted to the IRS center, with one being approved and the other being denied. When I queried as to WHY the denial was made, the IRS agent stated that he felt that the person was NOT working in his field of study, which was absurd given that the OPT job was approved by the university. When I pointed that fact out to the agent, he stubbornly refused to change his position and said I could always appeal the decision. Since the refund was less than $400, the client decided it was not worth the effort.

[zulu17]

Thanks for the info ATE... Yes I plan to wait until end of May before I submit Form 843. I have submitted the amendment and I have already talked to the HR at my work place and they have agreed to give me a refusal letter.

[AtlantaTaxExpert]

PM or email me if you need professional help!

[orlandian]

When was the last time you heard that someone was denied GC due to filing 1040EZ?

[AtlantaTaxExpert]

NEVER in ANY of my forum posts have I EVER said that a person has been denied a green card for filing an incorrect tax return. However, the possibility DOES exist.

I know this because I had to file EIGHT YEARS worth of amended returns for my son-in-law when he applied for his green card. The USCIS WILL require such amendments if they determine that an incorrect return has been filed, and they DO ask the IRS to back-check the filed returns for each applicant.

Fortunately for my son-in-law, the amendments resulted in no additional tax. However, if additional tax IS due, and if you wait 4-to-6 years before amending the returns, the combination of the penalties plus the compounded interest can EASILY triple the tax that was originally due had they filed correctly to begin with.

THAT is the principal reason why I recommend that the returns be corrected as soon as possible. It has been my experience that, in the majority of cases, little or no additional tax will be due when the amendments are filed.

When additional taxes ARE due, the IRS is usually willing to set up a payment plan that amounts to little more than a car payment for about a year to pay whatever back taxes are due, plus they will WAIVE the penalties because you came forward voluntarily to correct the filing error.