[AndyDD]

Dear AtlantaTaxExpert,

I came to the State in 2002 August on F2 Visa; I then changed to H4 Visa in Nov,2002 (because my wife switched from F1->H1 at the same time frame). Later I changed to F1 Visa in Jan. 2004 when myself became a graduate student here. I worked since April 2005 on F1 OPT, finally in Jan, 2006 I changed to H1(My wife keeps her H1 status during the whole later period).

Physically I am present in the state all the time. My questions are:
1) If we don't choose “Married file jointly”, Can I file 1040NR as a non-resident alien
2) Can I clam the $5000 Tax treaty since I am a Chinese?

Your help will be highly appreciated.

Regards!
3/26/06

[AtlantaTaxExpert]

1) Yes for 2005, if you filed as a non-resident in 2004. If you filed as a resident alien in 2004, the IRS will expect the same for 2005.

2) Yes, if you can file as a non-resident alien. NO if you are filing jointly with your wife as a resident alien.

[AndyDD]

Dear AtlantaTaxExpert

Thank you so much for your prompt answers!
Please allow me to ask one last question here, sorry for bugging you more.

In 2004, my wife and I chose to file jointly as resident aliens, hence as said above, IRS will expect the same from me for 2005. In that case, how do I get refund for social security and medicare taxes withhold from my 2005 salary - I mean is it still possible I use form 843/8316 to ask for a refund for them, even if I have to file as resident alias for 2005?:confused:

Regards!
3/26/06

[AtlantaTaxExpert]

AndyDD:

You can still request the Social Security and Medicare refund, but the chances that it will be approved are greatly reduced by you filing as a resident alien.

Further, while you can attempt to amend your 2004 return to go back to non-resident alien status, the IRS will likely not authorize that. They normally consider the decision to file jointly as irrevocable.

Sorry to be the bearer of bad news.

[AndyDD]

Thanks for your replies AtlantaTaxExpert
(although they are no good news to me)

I appreciate your help!
Regards!
3/27/06

[AtlantaTaxExpert]

Wish it would have turned out better.