[raju79]

I was in F1 for the full year 2005. My wife was in F1 till July 2005, after which she was in H1. Our tax agent advised us to fill 1040 i.e. residents, married filing jointy for 2005. Though we received our returns, looking at the current posts I feel we filed the wrong return.

I know we were not qualified to file as residents, married filing jointly under the IRC Section 6013(h) as that would have required both of us to be resident at the end of year 2005. But did we qualified under IRC Section 6013(g) "Election to treat nonresident alien individual as resident of the United States" which only requires to be married to a 'resident or citizen' at the end of year?

Secondly, can my spouse be classified as resident at the end of 2005, since she stayed continuously for 31 days and also for more than 75% (starting from 1st of 31 days) but did not completed 183 SPT for that year (but completed this for following year)?

Lastly, should we have waited to complete 183 days on year 2006 (we filed before 15th April 2006), before filing our taxes? Please advice. Thanks in advance for your time.

[MukatA]

No, in 2005 you had choice of filing joint return as residents. Only requirement was that you must wait to file your tax return till your wife completes SPT (183 days) in 2006, which you did. So you filed correct return.

After 2005, you must pay FICA taxes on your F1/OPT income as you have chosen to be treated as resident for tax purposes.

[raju79]

No, in 2005 you had choice of filing joint return as residents. Only requirement was that you must wait to file your tax return till your wife completes SPT (183 days) in 2006, which you did. So you filed correct return.

After 2005, you must pay FICA taxes on your F1/OPT income as you have chosen to be treated as resident for tax purposes.

MukatA, thanks for your reply. So, for just confirmation... you are mentioning even though I was non-resident for full year, we did right thing by filing resident/joint return, since my wife was partially on resident status on 2005.

One more thing, we didn't waited 183 days before filing for year 2005. We did got the returns back. Should we do an amendment now? Is there a separate form for proving SPT?
Thanks.

[AtlantaTaxExpert]

No, there is no separate form to prove SPT.

You really CANNOT amend the return to go back to filing separately, as the IRS considers filing jointly to be an IRREVOCABLE decision (unless you were NOT legally allowed to file jointly).

Since, as MukatA said, your filing was legal (and it WAS legal as soon as the SPT date passed), you cannot change it.

Also, a new IRS ruling says that you are STILL exempt from FICA taxes under your F-1 visa, even though you filed as a resident alien (see link below):

Nonresident Spouse Treated as a Resident

[raju79]

No, there is no separate form to prove SPT.

You really CANNOT amend the return to go back to filing separately, as the IRS considers filing jointly to be an IRREVOCABLE decision (unless you were NOT legally allowed to file jointly).

Since, as MukatA said, your filing was legal (and it WAS legal as soon as the SPT date passed), you cannot change it.

Also, a new IRS ruling says that you are STILL exempt from FICA taxes under your F-1 visa, even though you filed as a resident alien (see link below):

Nonresident Spouse Treated as a Resident

Thanks for your reply. That leads me one more question regarding another case for the same year. Approx $500+ has been withheld by my employer by mistake for 2005. Later they stopped it, but refused to pay me back. Following this I filed 843, but it got rejected stating I filed as a married resident, jointly. I think my mistake was that while sending the 2005 tax return, I did not submitted a statement (declaration saying one spouse is non-resident and other resident). Also, I got wrong information for the same question on https://www.askmehelpdesk.com/taxes/...se-205958.html , but from the link provided above by you, it's very clear that I was exempted from the FICA taxes.

What can I do now. Should I send the form 843 again with an amendment 1040X with the statement? Or just send 843 again with a letter? Please advice. Thanks for your time.

[MukatA]

Almost always, IRS has been rejecting the claim for the refund of FICA taxes if any exempt person filed resident return in any situation.
As per new tax code, an exempt person is exempt from FICA taxes even if he/she files joint return as resident. But this is still new and I do not know any one who received refund of FICA taxes after filing resident return.

[raju79]

Almost always, IRS has been rejecting the claim for the refund of FICA taxes if any exempt person filed resident return in any situation.
As per new tax code, an exempt person is exempt from FICA taxes even if he/she files joint return as resident. But this is still new and I do not know any one who received refund of FICA taxes after filing resident return.

MukatA and AtlantaTaxExpert, thanks to both of you for the replies. MukatA, I apolozise for misunderstanding your reply in the quoted question.

Bottom Line: Though I already got a rejection for Medicare and SSN taxes, now I have a solid document, which clearly says I am eligible to get the money back. I am not going to let IRS keep on denying our hard earned money, to people like me. I will fight back. I will keep it posted.