[rohitkumar_garg]

This is really a great form. Thanks for answering all my questions. I was reading through some messages and came to know that I did a mistake while filing 2004 year returns. Here is my case:

I came to US on H1 in 2003 and stayed for 257 days and filed my 2003 returns as Resident alien. I stayed for 93 days in 2004 and went back to India. For year 2004, I filed my returns as a Resident alien.

As per the 183 rule, I was non-resident alien for year 2004. As I filed as resident alien for year 2004, I am planning to file 1040X form with 1040NREZ or 1040NR form. Is my understanding correct Or I can't file as Non-resident alien now as I have filed as resident alien in 2003?

If I can file as non-resident alien, what's the limit of treaty benefits. For e.g.. If my income for 93 days is $18000, can I show the whole amount as exempt under Treaty benefits or there is a max limit?

Moreover which form would be more beneficial (1040NR or 1040NR-EZ) as I was married in 2004. Also filing which one of these forms, one can get more refunds.

Thanks
Rohit

[AtlantaTaxExpert]

Rohit:

Unless your visa status changed in 2004, the fact that you filed as a resident alien in 2003, In my opinion, obligated you to file as a resident alien in 2004.

This being the case, your attempt to convert back to non-resident alien status by filing Form 1040X will likely not succeed. You lose nothing by trying, but I do not anticipate the IRS ruling in your favor.

Assuming you can file as a non-resident alien in 2004 (not likely, but let's assume anyway), whether you can exempt all the income depends on for whom you worked and the nature of the work.

Download IRS Pub 901 from www.irs.gov and read the sections pertaining to India for guidance.

[rohitkumar_garg]

Hi Atlanta expert,

Thanks for your response. I worked for a client of an Indian company. & visa status didn't change during 2004. I am still on H1.

Thanks
Rohit

[AtlantaTaxExpert]

Rohit:

The fact that you worked for an Indian company may make you eligible for the treaty exemption, if you could file as a non-resident aliem.

Recommend you amend both your 2004 return to convert to non-resident alien status. If it is approved, then file Form 1040NR and request the treaty exemption.

Do not file your 2005 tax return until this issue is resolved. If you file as a resident alien in 2005, it weakens your case to covert back to non-resident alien status in 2004.