[fellow]

I saw a similar question, but since my situation is a little different, I would like to be sure please. I was on H1-B from 2005 to February 2008. I then switched to F1 and was on F1 until end September 2009, when I went back to H1-B. Under substantial presence test, I was a resident for 2008 (>31 days in 2008 + 1/3 of 365 in 2007 + 1/6 of 365 in 2006). For 2009, according to the information I get on this site, I can be a dual-status taxpayer if I make the First year choice and wait until I meet 183 days of presence, and since I am married can be considered a resident for the WHOLE of 2009 if I make another election for my wife and I to be treated as residents. Is this correct? My wife is on H4 and had no income in all the years we have been here. My question is then, with the first year choice and additional election, are we both then treated as residents for 2009 and file form 1040?

[MukatA]

If you file resident return in 2008, file joint return as residents.

[fellow]

Thank you MukatA, but my situation changed in 2008, so just because I was a resident then, doesn't mean I'm a resident for 2009. The similar question I read was where Taxresearcher and ATE were debating about the first year choice and choice to be treated as a resident when married. My problem is that I was a resident but then became nonresident, because of change to F1. So if I changed back to F1, can I take first year choice if I was a resident in the year before?

[MukatA]

You should forward this link to AtlantaTaxExpert and IntlTax for their comments.

My opinion, you can safely file resident tax return. Must pay FICA taxes even during F-1 and OPT.

[fellow]

Dear Atlanta Tax Expert and/or IntlTax, Mukata suggested I ask this question to you. I was a resident after being on an H1-B for 4 years. In Feb 2008 I changed to F1. Under the substantial presence test, for 2008, I was still a resident. I changed back to H1-B in October 2009. I am married and my wife has no income. So, we can wait to meet substantial presence test this year and take the first year choice and then make the further election to file as residents for the whole year. However, I want to know if I can make a first year choice if I was a resident the year before? Reading the publication 519 and the first year choice, I wasn't sure if it means I can't make this choice if I was a resident the year before. Thank you.

[AtlantaTaxExpert]

I agree with Mukat. You should file as a resident under Continuous Presence.