[nhg]

Since 2002 my visa status has been the following:

08/2002 - 12/2002 -- F1 Visa full time student
01/2003 - 12/2003 -- F1 Visa full time student
01/2004 - 12/2004 -- F1 Visa full time student
01/2005 - 12/2005 -- F1 Visa full time student
01/2006 - 12/2006 -- F1 Visa full time student

01/2007 - 08/2007 -- F1 visa with opt / didn't use opt

08/2007 - 12/2007 -- F1 Visa full time student
01/2008 - 12/2008 -- F1 Visa full time student

01/2009 - Present -- F1 visa with opt / haven't use opt




All of those years from 2002 to 2009(right now), I have been a full time student on F1 visa, but I have been living in Mexico and going to school at Texas, everyday. This means that I have been crossing to the US everyday with my student visa, do I still qualify to file resident tax 1040ez for the 2008 year?

Thanks!

[nhg]

Anyone?

[MukatA]

No when you come to U.S. and go back to Mexico, this does not count as days in U.S. So you will file nonresident tax return.

[AtlantaTaxExpert]

Sorry, but this time, MuktA is not correct.

If you spend even part of the day in the U.S. on a F-1 visa, that one day uses up the entire year of your 5-year exemption. Your F-1 exemption expired on 31 December 2006.

For 2007, 2008 and 2009, you were a resident alien for tax purposes unless you are claiming a "closer connection" to Mexico, for which you must submit proof with your annual submission of Form 8843.

[IntlTax]

The closer connection exception is only available if you spend less than 183 days in the U.S. If you spent more than 183 days in the U.S. you must rely on the "tie-breaker" provisions of the Mexico-U.S. Income Tax Treaty. Under those provisions you should not be treated as a resident of the U.S. However, you are supposed to include Form 8833 with the filing of your Form 1040NR.

[AtlantaTaxExpert]

I concur with Intl Tax on this issue per the tie-breaking criteria specified in Paragraph 2, Article 4 of the U.S.-Mexico Tax Treaty.

[nhg]

Many thanks AtlantaTaxExpert and IntlTax , I want to file resident tax 1040ez without making use of the closer connection exception as it will be easier for me to complete my tax. Is that possible or I need to declare the exception because I commute everyday to US?

[AtlantaTaxExpert]

What is your intent after you complete your schooling?

[nhg]

Work in the US if possible

[MukatA]

Here is text from page 5 of IRS Publication 519: Tax for Aliens:
Regular commuters from Canada or Mexico. Do not count the days which you commute to work in the United States from your residence in Canada or Mexico. You are considered to commute regularly if you commute to work in United States on more than 75% of the workdays during your working period.

[IntlTax]

MukatA, this rule does not apply to nhg because he is commuting into the U.S. for school and not for work. Thus, his days of presence in the U.S. as a student (beyond the first 5 years) apply for purposes of the substantial presence test.

[AtlantaTaxExpert]

In my opinion, you do NOT have the option to file as a resident alien, but rather MUST file as a non-resident alien until you establish residency by actually moving to the U.S.

[IntlTax]

ATE, why don't you believe he can file as a resident?

[AtlantaTaxExpert]

IntlTax:

We just established that the tie-breaker provisions in the tax treaty makes him a resident of Mexico and thus a non-resident alien.

Unless he establishes residency in the U.S. how can he file as a resident alien?

Are you saying that he has a choice?

[IntlTax]

Under U.S. law (the statute and the regulations), he would be a resident of the U.S. (substantial presence test). If the treaty is invoked, he would be a resident of Mexico. I know of no requirement to invoke the treaty. If a taxpayer chooses to pay higher tax under domestic law than under the treaty, there is nothing wrong with this.

Although not directly on point, consistent with this concept, the U.S. Treasury Department Technical Explanation to the Mexico-U.S. Income Tax Treaty provides in part:

[The treaty] may not increase the tax burden of residents of either country compared to what it would be under the respective domestic law provisions.. . This does not mean, however, that a taxpayer may pick among Internal Revenue Code.. . [and the treaty] in an inconsistent manner.. .

Here, the taxpayer is not picking and choosing inconsistently. He is simply choosing to apply domestic law. I see no problem with him filing as a resident of the U.S. if he meets the substantial presence test (which it appears he does meet).