[theoryxandy]

Hello Atlanta Tax Expert,

Self on h1b, wife on f1opt which ends this week. Been filing jointly as resident alies for past years.

Trying to file taxes for 2012. Wife's employer was not withhelding social and medicare taxes all through her opt (apr12-apr13). She is currently working with her employer on getting those back.

Upon doing a quick internet search, few links say that if we are filing jointly, then she is not exempt from withholding the fica. Fo example, there two links say two different things.

https://www.askmehelpdesk.com/taxes/...nd-633211.html

H1B and F1 visa filing jointly - Form 1040NR Form 8843 Instructions - F1 OPT J1 Tax Refund Tax Back - H1B visa taxes, H4 Tax ID Number, J1 Taxes, L1 visa taxes, Form 1040NR Software, Form 843, International Student Tax Return

Not sure which is the right way to do it. If we want to get back those fica money back,
Do we need to file separate? Is it okay to do that after we filed joinlty as resident alies all these years.

Thanks upfront

[theoryxandy]

Wondering if anyone can provide the right solution or direct me to a place where I can find one? Thank you.

[AtlantaTaxExpert]

Your wife needs to get her money refunded before you file jointly, or she has NO CHANCE of getting it back from the IRS.

She DOES retain the right to be exempt from FICA tax withholding as long as she is on the F-1 visa and the five-year exemption period has not run out.

There is a link on the IRS website that says this, but you have to search for it, because the link on the VisaTaxes.com is no longer current (the IRS revamped their website last year).

I know the advice given by Atlanta Tax Guru on the VisaTaxes.com forum is accurate because I WAS the Atlanta Tax Guru.

[theoryxandy]

Thank you ATE for your reply.

Her employer started the process (collected the docs from her today). Not sure if they just refund it or they have to go through IRS to get the refund?

I am right now about to file taxes- so based on your reply, should I wait few days to file them (risk of running close to April 15th)?

You also mentioned about 5 year rule. Does that rule apply for the total number of years in US or number of years in US in F1 status? I couldn't make it out from the excerpt from the IRS website ( I guess my poor english skills). Please explain.

http://www.irs.gov/Individuals/International-Taxpayers/Foreign-Student-Liability-for-Social-Security-and-Medicare-Taxes

Foreign students in F-1, J-1, M-1, Q-1 or Q-2 nonimmigrant status who have been in the United States more than 5 calendar years are RESIDENT ALIENS and are liable for social security/Medicare taxes (unless they are exempt from FICA under the "student FICA exemption" discussed below).

[AtlantaTaxExpert]

Number of years under the F-1 visa.

If you have a refund due, do NOT worry about the 15 April 2013 filing deadline.

[theoryxandy]

Thank you again ATE. That really helps.

[AtlantaTaxExpert]

Glad to help!