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medguy · Feb 18, 2006, 10:40 AM

Hello ATE,
I was a student on F-1 from July 2001 to June 2004 in NC(June 2003-June 2004 on OPT), currently I am on H-1B in NY since July 2004. I filed my taxes in 2002 & 2003 by filling 1040NR. But in 2004 I filed 1040 as resident alien and applied for education credits. via turbotax. In 2005, I filed my taxes through a CPA , who told me that I will not be able to revert back to NR status ever. I was interested in going back to NR status since the returns due to the Indian tax treaty were substantial. This year I am in the same dilemma. I would really like to revert back to NR status and file 1040NR to get back more taxes.( I got married in May 2004 and my wife's story is the same since we studied together and got the job at the same time). Is it possible at all to get IRS to agree to let me file 1040NR this year?
Please help me out, since I am losing out on a lot of money due to the mistake I did 2 years ago.
Thanks,
Ash

AtlantaTaxExpert · Feb 18, 2006, 04:03 PM

Ash:

I agree with your CPA. Once you file as a resident alien, you normally cannot revert back to non-resident status. Further, you are under a H-1B visa, which makes you a resident alien under the Substantial Presence Test.

medguy · Feb 18, 2006, 07:35 PM

Thank you very much for the prompt answer. Can I still use the Indian Tax treaty this year or file 1040X for last year to avail of the treaty?
Ash

AtlantaTaxExpert · Feb 18, 2006, 10:13 PM

You cannot use the Indian Tax Treaty.

You can ask to revert back to non-resident status by filing Form 1040X, but the IRS does not have to grant your request.

However, the worst thing that can happen is that they say No!

medguy · Feb 18, 2006, 10:43 PM

How do I go about putting in the request with IRS for change of status.
I really appreciate your help.
Ash

AtlantaTaxExpert · Feb 18, 2006, 10:59 PM

Fill out the Form 1040X, showing your tax calculations as filed as a resident alien and showing the calculations as a non-resident. It's likely the data will be identical.

In the comments section on the back of the Form 1040X, explain what you want and why. Be respectful and state your case concisely that you filed as a resident alien in error last year.