[doggery]

This is my story.

In 2008, from Jan 1 to Sept 30, I was holding F1 (OPT) visa and after that H1 visa. And for my wife, F2 and H4 respectively.

I filed an extension, now I am filing 1040 RA jointly return with my wife, is this right?

Now I got a problem. I have a 1042-S form, How should I deal with it? I don't know where on the 1040 form I can input the information of 1042 form.

Another question, I came to US in August, 2004. Can I still benefit from the US-China $5000 treaty?

Thanks a lot.

[doggery]

Should I file 1040 or 1040EZ? Thanks

[AtlantaTaxExpert]

You enter the Form 1042-S income on Line #7 of Form 1040.

Yes, you CAN claim the $5,000 treaty exemption one last time in 2008 by showing it as a negative number on Line #21 of Form 1040.

[doggery]

Thank you very much, AtlantaTaxExpert. I have another question. I will write up a first year choice statemment. Is there any other statement I should write to file the married jointly as resident? The first year choice only ensure of part of the year's resident, how can file the married jointly as the resident for the whole year? Thanks a lot

[AtlantaTaxExpert]

The statement has to say that you and your wife BOTH qualify to file as resident aliens under First Year Choice for 2008 and that you DO choose to be treated as resident aliens for all of 2008.

Those are the two essential elements of the statement, which must have BOTH of your full names, SSNs (put ITIN Applied For if your are submitting a W-7 for your spouse), your mailing address and BOTH of your signatures.

[mack20007]

I filed an extension, now I am filing 1040 RA jointly return with my wife, is this right?

I would echo the comments by Atlanta, and would add some information.

If your asking, is it correct to file MFJ being a nonresident?

You can, but there are various rules that one can make this election under, and variying conditions under which these tests must be met. I'll list these rules individually to be clear.

Rule No. 1 Nonresident spouse treated as a resident: In this rule you or your spouse must be a resident for some part of 2008 or a citizens of the US.

You said in your statement that your F visas went until Sept 08, usually this means your both nonresidents for all of 2008, as you both don't meet the substantial presence test, to become residents. Therefore this test is not applicable to you for 2008.

Rule no.2 :First Year Choice
This is the rule you mentioned in your second posting, and am assuming what your referring to.

"I will write up a first year choice statemment."

This is a unique election in that it allows you to be a resident in a prior year retroactively after
The year is over, and you become a resident in the following year. There are distinctive timing rules to meet this test. So, I'm assuming your talking about having met the substantial presence test in 2009, your going back and electing to be treated as residents in 2008.

And yes, you appear to meet this rule, though I haven't added up the days. This rule computes your residency start date in 2008, you can't count the days however you held the F visas. So this choice wouldn't make you residents for the full year of 2008, at the most it would make you dual status aliens.

Also, this rule does not require a statement that you both be treated as residents for the entire year, as inherently it establishes residency start dates during the year. And the beginning definition of this rule, Pub 519, p.8 First Year Choice, states this rule allows you to be treated as a resident for part of the year. So, under this election you would never be able to be considered residents for the full year, and file MFJ returns.

However, there is another rule called:

Rule No. 3 Choosing Residenct Alien Status:
(p.9,Pub 519)

This rule allows dual status aliens to file MFJ as residents for the full year, but whether you can combine the First Year Choice Rule that makes you a dual status alien, with this rule, that makes you a full year resident and file MFJ, I do not know. Clearly there is a rule for First Year Choice, and a rule for Choosing Resident Alien Status, each requiring different statements. You appear to be wanting to combine these rules and it is not inherently clear this is allowed.

Therefore, I would refer you to the IRS for verification on this topic.