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neelus · Jan 3, 2009, 06:55 AM

Hi,

I am on H1B visa and entered US on 4th July 2008. So this financial year I completed 181 days & does not meet 183 days substantial presence test. I am going back to my country in 1st week of feb 2009.

Is there any way I can get tax benefit of Resident Alien?

If it is not possible to get benefit of Resident Aliens then what are other tax rebate that I can claim considering I am married with my wife on h4 and we have 4 yr old kid.

Thanks,
Neelus

MukatA · Jan 3, 2009, 07:01 AM

No. you will file non-resident tax return. You will only report your U.S. income and not world wide income for 2008.
You will not get standard deduction. You will get $3,500 exemption deduction plus itemized deductions.
For 2009 also, you will file non-resident tax return.

Since you will be leaving in Feb 2009, you can not choose to file joint return as residents in 2008.

neelus · Jan 3, 2009, 05:04 PM

Thanks MukatA for information.

Is there a possibility of filling joint return with my spouse after getting her ITIN? Or that also require 183 days presence in urrent year.

neelus · Jan 3, 2009, 05:50 PM

Thanks MukatA for information.

Is there a possibility of filling joint return with my spouse after getting her ITIN? Or that also require 183 days presence in urrent year.

MukatA · Jan 5, 2009, 12:18 AM

No you can not file joint return as resident in 2008. It is possible only if you complete SPT in 2009 and both choose to file resident return.

IntlTax · Jan 5, 2009, 08:44 PM

You can elect to be treated as a resident and then elect to file a joint return. This would make both you and your spouse treated as U.S. tax resident for the entire year.

AtlantaTaxExpert · Jan 7, 2009, 01:43 AM

Sorry, I disagree.

In order to file jointly and be treated as resident aliens, the foreign nationals MUST complete the Substantial Presence Test, which will NOT happen if they return to India in February.

He needs to file as a non-resident alien.

IntlTax · Jan 7, 2009, 05:17 AM

Publication 519 provides:

First Year Choice

If you do not meet either the green card test or the substantial presence test for 2007 or 2008 and you did not choose to be treated as a resident for part of 2007, but you meet the substantial presence test for 2009, you can choose to be treated as a U.S. resident for part of 2008. To make this choice, you must:

Be present in the United States for at least 31 days in a row in 2008, and

Be present in the United States for at least 75% of the number of days beginning with the first day of the 31-day period and ending with the last day of 2008.. .

If you make the first-year choice, your residency starting date for 2008 is the first day of the earliest 31-day period (described in (1) above) that you use to qualify for the choice. You are treated as a U.S. resident for the rest of the year.

If the first year choice is elected, then the taxpayer is a dual status alien. Publication 519 further provides:

If you are a dual-status alien, you can choose to be treated as a U.S. resident for the entire year if all of the following apply.

--- You were a nonresident alien at the beginning of the year.
--- You are a resident alien or U.S. citizen at the end of the year.
--- You are married to a U.S. citizen or resident alien at the end of the year.
--- Your spouse joins you in making the choice.

This includes situations in which both you and your spouse were nonresident aliens at the beginning of the tax year and both of you are resident aliens at the end of the tax year.

As a result, they should be able to make the first year choice election and also make the joint return election.

The Texas Tax Expert · Jan 7, 2009, 06:37 AM

Intl Tax,

I think the problem is that the OP won't have sufficient days to pass the SPT in 2009.

IntlTax · Jan 7, 2009, 06:39 AM

Good point. That makes sense.