[AleAle]

Hi, I am from Brazil and have been living in the US (f-1 visa) since May 2005. I am a non resident alien. While I was in school, I did an internship at the same company from oct 2005 to feb 2007and I filed my taxes using turbo tax in 2005 and 2006. I used the 1040EZ form because I was not aware I should use the 1040NR EZ. Currently I am on my opticional practical training and my current employer is not witholding my FICA because of my status. However, the previous company I interned with withhelded my FICA and they are in the process of reimburse me. They asked for me to send my 1040 form. SOOO.. I just now realized that I screw up these 2 years using the incorrect form. What should I do to correct this wrong filing? What do you recommend me to do? Do I contact IRS? Thanks a lot. AleAle!

[MukatA]

You may be non-resident alien (as you don't have green card) but you still can be resident alien for tax purpose. So, I think, you correctly filed 1040EZ, because of the number of days in the U.S. Also there is not Tax Treaty between the U.S. and Brazil that says that you can only file 1040NR/1040NR-EZ if you have F-1 visa.

[AleAle]

Hi, thanks for your response, but why I would want to be a resident alien for tax purpose? Do you know the difference of filling as a resident alien or as a non-resident (Benefts/detriments)? So you think I should not worry? But I am getting my FICA back, and only non-resident aliens can claim for these taxes. If I filed as resident alien, I should not be able to get my taxes back, then?

Thanks.

[AtlantaTaxExpert]

MukatA:

Sorry, in this case you are wrong.

AleAle:

You are correct in your assessment that you filed incorrectly for 2005 and 2006. To fix the problem, you need to amend the returns for each year using Form 1040X AND attach a properly-prepared Form 1040NR-EZ. On the top of each Form 1040NR-EZ, neatly printed the workd "AMENDED".

You also need to ask that your non-resident alien status be reinstated for 2005 and 2006, because, in the IRS' eyes, you are a resident alien in spite of your F-1 visa.

This CAN cause problems down the road if you ever decide to apply for a green card, because the ICE corss-checks with the IRS to ensure that you filed correctly and paid the correct amount, which, in your case at THIS moment, you have NOT!

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

[MukatA]

Yes, I agree with AtlantaTaxExpert.
"In general, the F-1 students and J-1's in the student category only are considered nonresidents for tax purposes in their first five years of study. As nonresident he/she pays tax only on income earned in the United States may claim only him/herself as a personal exemption regardless of the number of accompanying dependents (citizens of Canada, Mexico, Japan, and Korea excepted) may not take a standard deduction; must itemize deductions file form 1040NR may claim tax treaty benefits. J-1 and F-1 nonresidents are also exempt from social security tax (FICA)."

[AtlantaTaxExpert]

Noted!

[AleAle]

Dear Atlanta Expert,
Happy New Year!!

For the amendment, should I use the 1040NR-ez form of 2005 and 2006 or can I use the 2007 for both? Actually, I have only found the 2007 form so far. Also, I will have to amend my earnings since my previous employer sent me a check refunding me with my FICA and a new w-2 for 2005 and 2006. Can I do it at once? Using only one form 1040x for amending my status (to NRA) and earnings? Thanks again Atlanta Expert.

Regards, AleAle

[AtlantaTaxExpert]

No, you need to use the 2005 and 2006 forms. You can get them from Internal Revenue Service, but I find it easier to use Home - 1040.com.

The refund of the FICA taxes is NOT taxable, so that should NOT be an issue when you amend the returns.

You need a separate Form 1040X for each year.

If you need my professional help, email me.