[aureliusc]

Hello everyone,

I searched in many IRS documentations and forums on the web but were not able to find a 100% sure answer.

Here's my story:

- In 2011, I spent 195 days in the US with a B1 Visa to work on project for a french company. Because of the Substantial Presence Test, I was considered a US Resident, BUT also a French Resident (closer connection, wages in France,. ). Thus I claimed Non US Residency under the tax treaty and filled a tax return 1040NR.

- In mid-january 2012, I came back to the US with a H1B to work for an american company (subsidiary of my french one actually). I have been working in the US since.


Now that I have to fill out my tax return, I am not able to figure if I am considered a Resident for the whole year, or a dual status resident (Non Resident from 1 to mid-january, Resident after).
In the IRS publication 519, effect of Tax Treaties is mentioned but it is not very clear about the consequences on the residency:

If you are treated as a resident of a foreign country under a tax treaty, you are treated as a nonresident alien in figuring your U.S. income tax. For purposes other than figuring your tax, you will be treated as a U.S. resident.

In the Dual Status part:

If you are a U.S. resident for the calendar year, but you were not a U.S. resident at any time during the preceding calendar year, you are a U.S. resident only for the part of the calendar year that begins on the residency starting date. You are a nonresident alien for the part of the year before that date.

So for dual status, when they say "you were not a US resident the preceding year", is it resident for tax purposes or is it more global?
As mentioned in the Tax Treaty part, I was treated as a NRA in figuring my US income in 2011, but treated as a US resident for other purposes.

Not very clear to me, I'll appreciate if someone can give me help on that :)

Thanks!
Aurelien

[AtlantaTaxExpert]

Aurelien,

File as a resident for 2012, because in fact you were dual-status in 2011. Filing as a NRA in 2011 is justified based on closer connection, but the IRS may argue dual-status is the accurate return given your subsequent return to the United States.

Amending the 2011 return to dual-status may be tax-free depending on how much you earned after you returned to France and what you paid in French income tax on that money.

Filing as a resident for 2012 can be justified under the "continuous presence" policy even if you do not amend the 2011 return, but I recommend amending the 2011 return to keep out of trouble.

The dual-status return is NOT for amateurs! Get professional help!

If you believe that you will need professional help filing this year, this IS what I do. Please double-click on my name (Atlanta Tax Expert) above to access my profile. You will find my email address in the signature portion of the profile (scroll down to the BOTTOM of the page).