Excellent, thanks ATE

Atlanta Tax Expert: First thanks a lot for your time and help.

I have been reading all the postings on this case
My case is very similar to v0C2000:

I entered the US in 2002 on an F1. I recently transitioned to an H1 on October 1, 2005. This is the summary of my stay in the US so far:

2002 - Entered US on August 20 2002 on F1
2003 – F1
2004 – F1
2005 – F1 (OPT) till July 20, 2005, I left the country
And I came back on an H1B on Oct 01, 2005 – Days on H1B – 92

I'm single, Ecuadorian citizen. From what I read on the previous questions I should file my taxes using the form 1040NR or 1040NR-EZ.

My question now is about the Social Security and Medicare tax that was withheld by both of my employers during 2005. The last 2 years I have filed forms 8316 & 843 to get that money back, but I’m not sure if I can do that this year. If I’m not wrong I can only claim those taxes back while I was on an F1 so I don’t know how should I file those forms because my W2 does not separate the SS & MC taxes withheld before and after Oct 01.

Thanks again for all your help.

You can request a refund for the Social Security and Medicare taxes withheld while under the F-1 visa.

You will have to show the calculations on how you determined which portion of the salary was under F-1 and which part was under H-1B, but that is grade school math based on what you made on a daily basis.

Hi A.T.E and others,
Read most of the messages in this thread and I must appreciate everone's efforts. I posted this message as a separate thread too, just hoping to get some attention here.

Thanks for your advice and time. Let me keep it as straight as possible:
1. Can I claim US-India treaty benefits while filing state taxes in Mass.
2. Can I claim my brother as dependent if I am paying his tuition fee for undergrad education in US? If yes, where do I reflect it in 1040NR form? (This is assuming that I am and was always on F-1)
3. Can I put tuition paid for my own graduate studies as deductible in taxes?
4. Is there any other deduction apart from personal exemption and standard deduction that I can or could take in last/this year tax return as a student from India?
5. (This is not inline with point 2, but please consider points 2 and 5 on case by case basis, thanks) Being on H-1 from October 2005, would you suggest filing just non-resident 1040NR or employing complicated first year resident's election by filing for extension and filling 1040 later? (I do not own a house or pay mortgages and do not anticipate taking any benefits that I can not take as a non resident). I want to do it right more than get more return back.

Thanks,
Amit

A.T.E. thanks a lot for your quick response:

I understand the math part I'm just not sure how to present those results, is there a form for that or should I just show those calculations on a piece of paper?

Thank you

You can show the calculations in Box 5 of Form 843, or on an attached page.

Hello:
I was on F-1 from Aug 2001-dec 2004. Then on OPt till oct 2005 and on H1B since then . I am totally confused on what forms are tobe filed because of the dual status last year. Any help is grealty appreciated.
Thanks
Vineet

You need to file as a non-resident alien, filing Form 1040NR or 1040NR-EZ.

Dual-status does not apply to you (read my sticky note announcement). Because you did not physically enter the country in 2005.

Hello ATE,
My case is same as others. Entered US 2002 (F1 visa)
Graduated Dec 2004. Worked on OPT till Oct 2005 & am since on H1.
If I file 1040NR can I apply for itemised deduction on monthly payment of my car & 3 air travels during 2005?
Some people say I can even claim daily gas mileage for commuting to work?
Thanks in advance,
Sameer

ATE:
I just saw your answer to vineet's question. You said that he can not file as a dual status because he didn't physically entered the country in 2005. In my case, I did leave the US in July 2005 when my OPT expired and then I came back in October with the H-1 visa. Since I physically entered the country in 2005, does that mean that I can file as a dual status?

As always, thanks for your time and help

Sameer:

No, the deductions you cite are not legitimate itemized deductions.

Pabloldu:

You read too much into it. You must start in country on 1 Jan and end out of country on 31 Dec, or vice versa to be considered dual-status.

Hi Atlanta Tax Expert:

You have been very helpful on this forum. Thanks a lot I had a question on the F-1 to H1 issue.

These are the facts:

1) I meet the substantial presence test for 2005 since I am on H1 since 07/27/2005. Total of 188 days in 2005. Since I was on F-1 in 2004, 2003 and 2002. I can claim dual status this year.
2) I am a resident of India.
3) I am married and my wife was also on F-1 and then H-1. (Both of us went to school and are now working)

From my reading of the IRS publications it appears I can either file using the 1) dual status (i.e. File 1040 and Attach 1040NR) or
2) Elect to be treated as resident for 2005 year and file only using 1040

Since I am a resident of India I understand I can claim the standard deduction and the personal exemption under both the situations. [PLEASE CONFIRM THIS]

However if I elect to file as "dual status" I will not be able to claim deductions on account of interest on education loan since under "dual status filing" I have to do separate returns and my status will be "married filing separately"

Thus I want to be treated as resident for the year which will let me file a joint return and claim credit on account of interest on education loan.

My questions are:
1) Is the above "understanding" correct?
2) Will I be liable for Social Security and Medicare for the whole year if I choose to file as a resident or only the period when I was on H-1?

Thanks a ton,

Sanjeev.

SanJeev:

You do NOT have the dual-status option. You must file as a resident alien. Read my sticky note post dated 27 Feb 06.

You will be able to claim the education credit and deduct student loan interest if you file as a resident alien.

You will NOT be liable for the Social Security and Medicare taxes not withheld while you were under the F-1 visa. You only have to pay the Social Security and Medicare taxes for income earned while on H-1 visa status.

Thanks for your help. How do I read the "Sticky note Post" I can't find it

Please let me know
Thanks

Found the "sticky note post" Thanks. On your guidance on Social Security and Medicare I am confused by the following language in Publication 519 -

"Social Security and Medicare taxes will be withheld from your pay for these services if you are considered a resident alien under Chapter 1, even though your non-immigrant classification (“F”, “J”, M or “Q”) remains the same"

This is on page 46 of Publication 519. Given that I am a resident under Chapter 1 under since I meet the substantial presence test does that mean that I owe social security and Medicare?

Quote:

---

Originally Posted by verdict

I was on the same boat last year...jan-oct opt oct-dec h1

1) You will be Non Resident for tax purpose as you are less than 183 days for substantial presence test.

2) I did not do any splits.

3) I used forms 1040NR-EZ + 8843 forms.

4) Yes you can claim the India-US treaty deductions( i do not know much is it this time).

---

Hi,

Please could you let me know how did you complete the tax returns? I am using CINTAX but it does not give me the tax treaty benefit. Any suggestions would help.
Thanks.

A.T.E. and others

I filing out my form 1040NR-EZ and there ara a couple of things that I'm not sure since I'm filing as a non-Resident but I'm on a different status today.
1. Your Occupation in the United States:??
2. Give the purpose of your visit to the United States:??
3 Type of entry visa:?? And current nonimigrant status and day of chabge?

As a reminder I was on my OPT from jan to oct when I got my H1 visa.

Thank you so much, I really appreciate your help

Sanjeev:

The citation is a worst-case scenario. Most students under F-1 status do NOT pay Social Security and Medicare taxes. When you converted to H-1B, you started paying Social Security and Medicare taxes, as required by law.

Love Rhtdmin:

CINTAX does not work well when you convert from F-1 to H-1 visa. You may have to do it manually.

Pabloldu:

1) Student
2) Attend school.
3) F-1; H-1; then put date you converted to H-1

ATE and others,
You are doing great job here in this forum by solving a lot of doubts. Many thanks.

Just a few quick questions:
1. How do you read the sticky post?
2. Though I am on H1 from Oct 1st, 2005, do I still need to write "student" for Your occupation in United States and for point C on page 2 of 1040 NR-EZ (your purpose of visit to the United States) ? I know this has been answered by ATE, just confirming :-o



Prem

The sticky post was posted on 27 Feb 06. Just look for it.

Yes, you are considered a student for 2005.

A.T.E.

I'm filing Form 843 to get my SS and MC taxes back. To file this form you need to attach:
- a copy of your visa
- Form I-94 (Arrival - Departure Record)
- If you have an F-1 visa, FOrm I-20
- If you have a J-1 visa, Form DS-2019
- If you are engaged in OPT, Form I-766 or Form I-688B

Since I'm on a H1 visa since October, what copy should I submit (H1 or F-1) and which I-94 (I have my current one from the last time I entered the country in Jan but I also have a copy of the one last one I had while I was on F-1)

Thanks a lot for your time

Submit the F-1 visa and the last I-94 that you had while on F-1 visa.