[vinaygajjar]

Hi,

I want to know what form should I use to file my returns? Here is the information on my status.

I came in USA in August 2001 on a student visa. I got my OPT in Jan 2004. And I joined a consulting firm and started earning from May 2004. Meanwhile my status was changed from F1 to H1-B in November 2004. My employer sent me two w-2 forms. I am really confused and I don't know which forms I should use to file the income tax. Any help is appreciated .


Thank you
vinay

[AtlantaTaxExpert]

Vinaygajjar:

You should file Form 1040NR or 1040NR-EZ.

In my opinion, you are a "dual-status" alien, and therefore cannot claim the standard deduction. :(

[AtlantaTaxExpert]

See my posting on this issue!

[2manzi]

Hello:

I have a question about whether I can use the tax treaty for my income tax exemption this year.

I came to US in 99 on J-1 visa and Changed to H-1 in the mid of 2001. I have been doing research in universities since I came over. I used the treaty to get my income tax exempted for 1999 and 2000. And I started filling 1040 since 2001. According to the treaty between US and China, where I am still a resident, I can claim the tax exemption for three years. However, I was confused in 2001, thinking that the treaty only applied to J-1, so I didn't claim it in 2001 as my status changed to H1 in that year. I just got to know from a new friend couple weeks ago that H1 can claim the exemption as well as long as it meets the arequirments of the treaty.

I therefore wondered since I have only used the treaty for two years in 1999 and 2000, then could I use it again for 2004 for rthe third year, even if I have filled my tax return as resident alient since 2001? I called IRS 800 number, the person who I was directed to as treaty expert said that it only applies for the first three years. However, I argued that the treaty didn't say anything as the first three years, but 'in a period not exceeding 3 years in aggregate'. He then said he doesn't have the right to interpret law and asked me to call another number which I had to wait forever.

What do you think? Can I do it or not? Really appreciate it.

Following is the treaty article.


{PROFESSORS, TEACHERS AND RESEARCHERS}


ARTICLE 19


An individual who is, or immediately before visiting a Contracting State {the United States} was, a resident of the other Contracting State {China}and is temporarily present in the first-mentioned Contracting State {the United States} for the primary purpose of teaching, giving lectures or conducting research at a university, college, school or other accredited educational institution or scientific research institution in the first-mentioned Contracting State {the United States} shall be exempt from tax in the first-mentioned Contracting State {the United States} for a period not exceeding three years in the aggregate in respect of remuneration for such teaching, lectures or research.


{The Treasury Explanation of the treaty with China explains the application of the period of up to three years in the aggregate with an example. A resident of China who visits the United States to conduct research at the National Institutes for Health (NIH) for two years, 1994 and 1995, returns to China for a year, and then comes back for another year of research at NIH in 1997 would be exempt from tax on his NIH remuneration for each of the three years. However, if he stayed at NIH in 1998 or returned at a later time the exemption would no longer be available.}

[AtlantaTaxExpert]

Recommend you query Professor Carter at his website (www.thetaxguy.com).

He specializes in tax returns for resident and nonresident aliens. Your questions go beyond my expertise.

[2manzi]

I just sent him an email at the email address I found in the website you send me. I Hope he will response. Thank you!

[AtlantaTaxExpert]

Suggest you log onto his forum and post your question there. In my opinion, Professor Carter is more likely to respond to such a posting than to an individual e-mail.