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cbaek212 · Apr 26, 2006, 11:58 AM

I already filed 2005 tax return as a duel status.
I got already refund what I filed.

After that, I claimed my SST/Med for a partial year. My employer already deducted its tax during my F-1 period.

I got it denied because it appeared 1040.

I explained my status as a duel on the phone, but he told me that I could not clain SST refund.

So, my questions are;

After filing a duel status, can I claim SS/Med tax refund or not?

Can I submit a amended file as 1040NR tax return so that I claim SS/Med tax refund later?

Right now, it seems I supposed to submit tax return as a NR. Do I have to file amended tax return as a NR?

Now, I am confused what to do.

Please let me if you have any idea.

taxsearcher · Apr 26, 2006, 01:30 PM

Technically I believe you should be able to claim this back.

The law states that if you are a NRA here on an F1 visa and do employment consistent with the purposes for which you are admitted to the US then that is not employment for FICA purposes. Section 3121(b)(19). Why did your employer even withhold when you were in F1 status? Clearly income earned when you were no longer in F1 status would not be exempt from the social security tax so that part makes sense.

The problem that you've got is that the IRS is looking and seeing that you're filing as a resident and this is causing an issue. If you had filed NR then there would have been no questioning.

I don't have details as to what you did or why but it sounds like you made the first year election in order to file dual status, is that right? Depending on your circumstances that may have been the best thing to do but I suspect filing NR would have been better all round.

I think you should revisit the issue of your filing status first.

AtlantaTaxExpert · Apr 26, 2006, 04:57 PM

I agree with TaxSearcher, you should have been allowed to claim the refund of SS and Medicare taxes if you filed as a dual-status alien.

You DID file a Form 1040NR as a tax statement to account for your F-1 status income, correct?

cbaek212 · Apr 27, 2006, 04:22 AM

Yes, I did. I clearly showed F-1 status on a duel status tax return.

Someone in IRS told me that I would get a letter from IRS and then I would be able to send a letter against their rejection. Now I am waiting for the letter.

Actually, he thought that I submitted 1040 and I told him again that I submitted a duel status and then he still said "maybe" I would get SST refund.

I don't think he has enough knowledge to handle my case.

Anyway I would like to bring my case again.

I am Korean.

I came in here July 2001.(No income this year)
I worked with OPT in January 2005 and then I got H-1B in November 2005.
I got an advice to submit tax return as a duel a several months ago.

If I am wrong for a duel status, DO I have to amend it?
Or, just wait and see the letter and then, send it back to IRS with the explanation why I have to get SST refund.

Thanks, your guy help.
I felt bad yesterday but good today. I have to still go through though.
Thanks again.

taxsearcher · Apr 27, 2006, 04:54 AM

Were you F1 when you came and for the times that you were not H1? I assume that is what you are saying.

If so, I believe you should have filed NR all year. You did not become a resident in 2005 so dual status was not an option to you. (Until you satisfy the SPT in 2006 you are not even able to make the first year election for 2005).

My advice would be to file an amended return.

cbaek212 · Apr 27, 2006, 04:58 AM

Thanks for your reply.

OK, so I will file an 1040X.

Do you think I will be able to claim SST refund later after 1040X?

Thanks in advance.

AtlantaTaxExpert · Apr 27, 2006, 06:18 AM

Agreed. An amended return filing as a non-resident alien should resolve the issue.

cbaek212 · May 18, 2006, 09:34 AM

Now,I am preparing to file 1040X.

I've got the letter why my claim for SST was denied from IRS.
It said that "A taxpayer that files married filing joint is not allowed to change to married filing seperate after the due date of the return. Therefore you are not allowed a refund of FICA taxes."

I was told that because I filed 1040 instead of 1040NR, my claim was rejected. I filed a duel status not 1040 though.

I don't understand what the letter said above.

Anyway, Do you think I am still available to file 1040X and claim SST tax refund during F-1 period?

If yes, I am going to call to someone in IRS and file 1040X first and cliam SST refund.

Yes in advance

AtlantaTaxExpert · May 18, 2006, 05:08 PM

So you filed as a dual-status alien and filed Married Filing Jointly?

If so, then you cannot amend your return to file as a non-resident alien, because non-resident aliens CANNOT file a joint return. Further, what the IRS said is true: Once you file a joint return, you cannot revoke that decision except under very narrow circumstances.

You need to appeal the letter. They apparently think you filed as a resident alien, not as a dual-status alien. You also need to file Form 1040X to amend the return to a dual-status return under First Year Choice (see IRS Pub 519 for details).

Finally, you probably should get professional tax help, as you may have to explain your position to an IRS agent who is NOT thoroughly familiar with IRS Pub 519.

cbaek212 · May 19, 2006, 05:24 AM

I think I did married filing jointly. But I did not try do take advantage of it.
I just assumed this was right for me.
I believe if I filed as NR, I would have got the same tax return.

You mean I will be able to file as dual status again under first year choice?
But I already filed as a dual status. I don't understand what makes it different if I file 1040X as a dual status again.(I could not change Married Joint status , right?)

So, my point is that how I explain I filed as a dual status and I made a mistake to file Married Jointly and I did not tried to take an advantage of Married Joint because F-2 can not work in US. So that Filing Married Jointly is nothing to us.(Obviously, this is my mistake, right?)

THe IRS letter said that I may request a small dollar case appeal for a disallowed claim.

1. State that you want to appeal.
2. List the disallowed items you disagree with and why you don't agree with each item.
3. Provide your name...
4. mail.

What do you think whether I better retain someone to help or I can prepare Appeals by myself?

If I do by myself, can you help me how to state my position to an IRS person who don't understand my case.

It is a lot of work for me to go through this pain. But I will.

I appreciate your help,

Thanks,

AtlantaTaxExpert · May 19, 2006, 03:43 PM

I can help you make the appeal, but I will not do so without compensation. Even though tax season is over, I am still rather busy

You would have to fax me all the documents for me to review before I would quote a fee (which would be at least $75).

If you are interestd, contact me at [email protected].