[Vandana]

Hi,

Up to now, I believed that when you are on F1 visa, it's mandatory for you to file form 8843 unless you qualify as a resident on the basis of 5 years stay in US.

But, I read an FAQ as follow.

What happens if the student doesnʼt file the form 8843?
If Form 8843 is not filed, the alien canʼt exclude their days of presence from the SPT. This could mean that they will be viewed as a resident alien for tax purposes. They would have to report all of their world-wide income on the U.S. tax return and they may not be able to claim their treaty benefits.

This is on the following link.

http://www.irs.gov/pub/irs-pdf/p4152.pdf

I have couple of questions.

1) If I don't want to declare myself as a Non Resident, is it legally possible to do so, by not filing 8843?

2) If not, does non filing of 8843 affects me while applying for H1 or Green card?

Further, I read following section in Form 8843.

Penalty for Not Filing Form 8843
If you do not file Form 8843 on time, you may not exclude the days you were
Present in the United States as a professional athlete or because of a medical condition or medical problem that arose while you were in the United States. Failure to exclude days of
Presence in the United States could result in your being considered a U.S. resident under the substantial presence test.

You will not be penalized if you can show by clear and convincing evidence that you took reasonable actions to become aware of the filing requirements and significant steps to comply with.

Does that mean same as what that FAQ states?

Thanks in advance.

[AtlantaTaxExpert]

The FAQs were poorly-worded, as that implies that you can benefit by not complying with U.S. tax law as it applies to foreign nationals.

That is NOT the case!

If you were under an F-1 visa and failed to file Form 8843, you cannot exempt the F-1 days from SPT. However, the SPT by itself does not determine your residency status.

Further, you cannot take advantage of the system and intentionally not file the Form 8843 with the intent of qualifying for resident alien status in hopes of claiming certain credits (lke Education, Child Tax and Earned Income) that are normally NOT available to non-resident aliens.

To do so is TAX FRAUD, which is a serious crime that can get you deported!

[fernando78]

Hi,

Upto now, I believed that when you are on F1 visa, it's mandatory for you to file form 8843 unless you qualify as a resident on the basis of 5 years stay in US.

But, I read an FAQ as follow.

What happens if the student doesnʼt file the form 8843?
If Form 8843 is not filed, the alien canʼt exclude their days of presence from the SPT. This could mean that they will be viewed as a resident alien for tax purposes. They would have to report all of their world-wide income on the U.S. tax return and they may not be able to claim their treaty benefits.

This is on the following link.

http://www.irs.gov/pub/irs-pdf/p4152.pdf

I have couple of questions.

1) If I don't want to declare myself as a Non Resident, is it legally possible to do so, by not filing 8843?

2) If not, does non filing of 8843 affects me while applying for H1 or Greencard?

Further, I read following section in Form 8843.

Penalty for Not Filing Form 8843
If you do not file Form 8843 on time, you may not exclude the days you were
present in the United States as a professional athlete or because of a medical condition or medical problem that arose while you were in the United States. Failure to exclude days of
presence in the United States could result in your being considered a U.S. resident under the substantial presence test.

You will not be penalized if you can show by clear and convincing evidence that you took reasonable actions to become aware of the filing requirements and significant steps to comply with.

Does that mean same as what that FAQ states?

Thanks in advance.

That's a pretty good observation by Vandana. In these form's instructions it seems like being treated as a NR is actually advantageous, and that they would prefer to treat everybody as US Citizens. Or that they don't mind to treat you as US citizen for tax purposes.

[Vandana]

Thanks a lot.

[AtlantaTaxExpert]

Glad to help!