[ghaegdorens]

The issue is how to fill taxes and how to pay minimum amount of taxes.

The case is:
My wife is Thai National and was employed under the OPT (student) USCIS status from Feb 2008 until Sept 2008, H1-B from Oct 2008 until Dec 2008. We got married in August 2008. I am a us citizen.

First, her company paid Fica which they did not have to because she is exempt from all taxes under the foreign national tax treaty as F-1 Student. (How do we get it back if possible)

Second. Would should be reflect on her W-2 in January. The whole amount since Feb 2008 or only since Oct 2008.

Third do we file single, married separate, married jointly. How will this reflect that amount of taxes we pay.

Fourth, is there any relationship between her exempt tax status as foreign national and the way she files taxes.

I don't want to end up including all her income since Feb 2008 in our taxes because not many taxes have been withheld on them.

Thanks,

For your advice.

[AtlantaTaxExpert]

First, assuming she was NOT enter the U.S. on her F-1 visa prior to 2004, she was exempt from the FICA (Social Security and Medicare) taxes ONLY. She WAS liable for state and federal INCOME taxs. She became liable for FICA taxes the day he H-1B visa became effective, probably 1 October 2008.

The best way to handle this is for the employer to request a refund of the FICA taxes, because, that way, both your wife and the employer get money back. Your wife CAN request a refund of her part of the FICA taxes by submitting Form 843 after 1 January 2009, but that shortchanges the employer.

Second, if the employer gets busy, they should be able to fix the FICA issue and properly show ONLY the FICA taxes due from 1 Oct 08,

Third, you probably should file jointly. However, your wife IS entitled to a $3,000 treaty exemption if she files by herself as a non-resident alien (NRA). She could NOT claim the $5,450 standard deduction by filing as an NRA, but if significant state taxes were withheld, she could claim those withheld taxes as an itemized deduction and actually come out BETTER tax-wise than filing jointly with you. You should have the tax pro model BOTH situations and compare results before deciding.

Fourth, if she files JOINTLY with you, it does NOT affect her FICA tax exemption at all.

[ghaegdorens]

So exempt form taxes means only from Fica. So she has to pay federal and state tax. Is this correct and do you know in which tax code where this is reflected.

One more question. Should all her income be reflexed on the w2 as taxable income or only the income from oct to dec?

How can the company of my wife request the FICA back. Is this through the 941 tax from? Does this have to happen before Dec31 of this year 2008?

Thanks for your help.

[AtlantaTaxExpert]

It is reflected in the Internal Revenue Code and in the U.S.-Thailand Tax Treaty.

In Block #1 of the W-2, ALL of her taxable income for the entire year should be reflected.

In Blocks #3 and #5 of the W-2, only the income from 1 October onward should be reflected.

The company CAN request the refund via Form 941, and it has to happen before the due date for last quartter of 2008, which is 15 January 2009.