[kgkris]

Dear Atlanta Tax Expert,

I've been browsing through this forum and have found your responses quite informative. Considering April 17th is the deadline I have a question at the 11th hour. :o

I came to US on H1B in Oct 10th 2004, for the first time. I was here till Jan 10th 2005, when I went to India (I am an Indian citizen). I came back to the US (to the same city) in April 05th 2005 and am here ever since.

I have always been on H1-B Visa.

According to the substantial presence test:

Number of Days in 2005: 281 (viz. > 31 days)
1/3rd of Days in 2004: 27.3 (82/3)
1/6th of Days in 2003: 0 (0/6)

Sums up to : ~308 days (viz. > 183 days)

And more over ,2005 was not my first year in US.

So, my question would be, do I qualify the Substantial Presence Test?
If so, I assume I don't need to write DUAL-STATUS RETURN in the 1040 form?
And I am eligible for standard deduction instead of the itemized deduction?

Please let me know if my understanding is correct. A quick response would be extremely helpful.

TIA
kgkris

[AtlantaTaxExpert]

No, you do not meet the Substantial Presence Test; if you file immediately, you must file as a non-resident alien (Form 1040NR) and NOT get the standard deduction.

You CAN wait until June 2006 to file as a resident alien under the First Year Choice. You should mail an extension request (Form 4868) and mail a check if you determine that you owe taxes. If you have a refund coming, no check is needed. Mail the extension TODAY!

[kgkris]

Thanks for the reply.
Is it OK for me to file the 1040 (DUAL-STATUS RETURN) if I file today?

Also, could you please explain which part of the substantial did I fail? (was the fact that I was not here in 2003?)

[kgkris]

I also had another question regarding Form 4868.
It talks about figuring out my total tax liability and amount paid for Federal Returns (for which I have a refund).
When I file an extension, is applicable for both Federal and State taxes?

I owe the state of Illinois as well. How do I pay that (and subsequenly mention it in Form 4868)?

Thanks

[AtlantaTaxExpert]

You will need to access the Illinois website to see what extension they use. They may accept the Form 4868.

If you are getting a refund, then just file the Form 4868 by itself.

In my opinion, dual-status filing is not an option in your case. Besides, it is a complicated return which will deny you your $5,000 standard deduction.

[taxsearcher]

ATE, I'm not sure I agree with you. Why are you suggesting that he/she does not meet the substantial presence test? The days in 2005 clearly exceed 183.

[AtlantaTaxExpert]

Taxsearcher:

You are correct. I have been dealing with non-resident aliens on F-1 status that it seems to be imprinted on my eyeballs.

Kgkris:

You do meet Substantial Presence. File Form 1040.

[kgkris]

Thanks for all your responses. I have filed for an extension till Oct. I believe I will file for 1040 in the mean while.

[AtlantaTaxExpert]

Glad to help!