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srikanthan78 · Feb 15, 2007, 02:28 PM

I came to USA on Aug 12th 2006 in L1 along with spouse (not working). Now I want to know if I am a resident or non-resident alien?
My other visits are:
In 2004 in B1 visa - for 91 days
In 2005 in B1 visa - for 91 days

1) Am I a resident or non-resident alien ?

2) Can I claim for my spouse ?

3) Which form I need to use for tax return filing ?

4) Can I apply ITIN numebr for my spouse?

Thanks

AtlantaTaxExpert · Feb 16, 2007, 10:49 AM

How are you getting paid, in US Dollar or in your home country currency?

WHO is paying you, your employer from your home country or a U.S.-based office of your employer?

How long will you be staying in the U.S.

srikanthan78 · Feb 17, 2007, 06:25 AM

I am getting paid in US dollars and paid by the US based office..

My stay will be for couple of years.

AtlantaTaxExpert · Feb 17, 2007, 07:05 AM

You are technically a non-resident alien, and you CAN file Form 1040NR or 1040NR-EZ immediately.

If you are willing to wait until mid-May 2007, you can file jointly with your wife and choose to be treated at resident aliens for all of 2006. You will have to claim your home-based salary (and probably claim a Foreign Tax Credit on Form 1116 for the income taxes you have paid), but filing jointly allows you to claim the $10,300 double Standard Deduction and both of your personal exemptions.

srikanthan78 · Feb 17, 2007, 07:09 AM

I heard that I have to file the tax return before April 15th. Is it so ? How can I wait until mid of may? If I wait till may how do I become a resident alien. The no. of days presence in the US is only 141 days in the year 2006.

If I file the 1040-NR form now, Can I apply for ITIN for my spouse now ?

taxsearcher · Feb 17, 2007, 01:14 PM

By my calcultions you are actually a resident since you have met the SPT. Thus you are a dual status alien (you are resident for part of the year, and non-resident for the other part).

If you want to, you can both elect to be resident for the full year. If you do that, you will have to report your worldwide income and claim the foreign tax credit for foreign tax paid.

The dual status return will be more challenging. You can do it yourself or pay someone.

AtlantaTaxExpert · Feb 17, 2007, 04:48 PM

Taxsearcher:

Are you counting the B-1 visa time for SPT?

I thought B-1/B-2 visa was not eligible for SPT.

SriKanthan:

If you need my professional help, contact me at [email protected].

taxsearcher · Feb 17, 2007, 05:30 PM

ATE, would I lie to you ;)

You bet the B1 counts!

srikanthan78 · Feb 17, 2007, 08:27 PM

I am really confused !

Though I pass the SPT, the no. of days presence in the US in the year 2006 is less than 183 days . When I called the IRS for help, they said that I am a non-resident alien due to the above said condition and they asked me to file using 1040NR or 1040NR-EZ forms.
I am really confused now on deciding which form to use.

If I am going to use 1040NR form for filing the return, can I claim my spouse as an excemption or shld I show as individual. IRS said that I could not show dependents when I am a non-resident alien.

taxsearcher · Feb 18, 2007, 01:09 PM

It is not 183 days in 2006. It is days in 2006 + 1/3 of days in 2005 + 1/6 of days in 2004. When you add those, you are over the 183 and hence resident.

srikanthan78 · Feb 18, 2007, 04:27 PM

The publication 519 says:

Even if you meet the substantial presence test, you can be treated as a nonresident alien if you: Are present in the United States for less than 183 days during the year

The above said statement in the publication 519 conflicts me if I am a resident or non-resident alien

taxsearcher · Feb 18, 2007, 05:24 PM

That would be true only if you also have a foreign tax home AND a closer connection with a foreign country. Meeting all three of those conditions would enable you to avoid the SPT.

Since you said that you plan to be in the US for a couple of years, you do not have a foreign tax home.

AtlantaTaxExpert · Feb 18, 2007, 06:01 PM

I concur with TaxSearcher.

srikanthan78 · Feb 18, 2007, 06:09 PM

Since I came to US only in Aug 2006, I do have tax home for the year 2006. So in this case, how can I treat that.

taxsearcher · Feb 18, 2007, 06:22 PM

OK, I'm really not going to keep arguing it with you. By all means seek other opinions. However, I do know what I am talking about and if you have come to the US with the intention of being employed here for several years, you do not currently have a foreign tax home.

AtlantaTaxExpert · Feb 18, 2007, 08:01 PM

Kanthan:

Arguing with TaxSearcher is NOT a good idea. He gives VERY good advice.

srikanthan78 · Feb 19, 2007, 04:11 AM

Sorry ! I really didn't argue. I am that much confused. These are the questions put on my me by a IRS personnel. That's why I got confused with all these.

AtlantaTaxExpert · Feb 19, 2007, 01:42 PM

Bottom Line: You meet the criteria for filing as a resident alien if you file jointly with your spouse. If not, you are a dual-status alien.

Filing as a resident alien probably results is a bigger refund and lower tax.

srikanthan78 · Feb 19, 2007, 01:45 PM

Thanks to Taxsearcher and ATE. I would file the return as a resident alien. Thanks again.

AtlantaTaxExpert · Feb 19, 2007, 06:18 PM

Glad to help!