The_English_Bride

I have always filed my taxes as a non-immigrant F-1 student, but I am now married and awaiting AOS approval. You might know from other posts that I have my GC interview on Monday (weather permitting). I may or may not know if I've been approved for the GC after Monday, so how do I file my taxes this year, and can they be done with my husband? Does my immigration status affect my husbands filing in any way? Is it better to file separatly this year? Plus, technically, since this is for 2008, I was still a non-immigrant working on OPT up until June 2008.

Dan B

From my experiences, it seems like INS resident status and IRS resident status are two different things.

The IRS want you to be resident, the INS don't want you to be resident. Eitherway, for tax purposes, in 2008 you sound like you are 'resident', i.e., file a 1040(EZ) based on all the W2s you should have received by now, and hope your employer deducted enough to cover the bill. Your current resident status (2009) has nothing to do with the taxes you should have paid in 2008.

The_English_Bride

Any other input? I'm still confused. I got approved for PR yesterday, but as Dan B pointed out, I was a non-immigrant F-1 last year. My husband wants to file jointly and probably online - is this allowed? What have other people in similar situations done?

newXgate

In general, I believe that whether you are classed as an immigrant or non-immigrant has no bearing on your liability for tax or filing tax, if you are resident in the US during the tax year in question. (There are some differences if you were not resident and are a LPR which are probably not relevant to your situation). For example, I changed status from H1-B (non immigrant temp work visa) to LPR a while back and it had zero impact on my tax returns. I also see no reason why your immigration status would have any bearing your ability to file jointly.

If you weren't required to file and/or pay taxes while in F1 status, that would be a different story, I know there are some categories of visa that essentially give you exemption from paying US taxes, but since you say you have 'always' filed taxes in that status I assume it does not carry tax exemption.

You may want to download the well written, if long, publication 519 'U.S. Tax Guide for Aliens', which is a good starting point for tax issues for immigrants. Careful study of that document will probably give you the answers you need.

newXgate

PS to my previous post. Since it seems that F1 students don't in general have tax liability and are classed as nonresident aliens, its possible your tax situation could in fact be affected by your change in status to LPR. You'll need to read P519 carefully to determine if you were a dual status alien in FY2008 and if you could qualify as a 'Nonresident Spouse Treated as a Resident' to file jointly. You may find it worthwhile contacting a good tax preparer who has experience in this area to advise you of the best course of action.

rew1000

I'll second the suggestion to read publication 519.

If you were married by 31 December 2008, your husband will have to file as "married". If not, ignore the rest of this post!

You can only file jointly if you were a "resident alien" in 2008.

I'm guessing that filing jointly will lower your tax bill.

It is possible that you were a "resident alien" in 2008 - a lot depends on the precise facts.

Ordinarily, time in F1 status doesn't count towards the "substantial presence" test that makes people who spend >183 days in the US "resident aliens", so F1 students are "nonresident aliens" for tax purposes.

However, it is possible that this is overridden by taking steps to change status to LPR (see p6 of pub 519).

However however, even if you were a "nonresident alien" you can opt to be treated as a "resident alien" (see "Nonresident spouse treated as a resident" p.10 of Pub 519).

Hope this helps!

The_English_Bride

Okay, i've read through the information on the IRS website and I thought I would be considered a resident because of the Substantial Presence Test. I have been here since 2005 almost continuously (365 days a year for the past 3). However, now you mention it - I'm not sure if it counts because I was still technically on an F-1 Visa. I've also been advised that because I was married before the end of the tax year I can file jointly with my husband, but i'm still not sure if he should be filing and asking that I be considered a resident, or whether I am a resident already?

newXgate

From just a cursory reading of P518 I see this in relation to counting days of presence for residence purposes :

" Exempt individual. Do not count days for which you are an exempt individual. The term “exempt individual” does not refer to someone exempt from U.S. tax, but to anyone in the following categories.
..
..


A student temporarily present in the United States under an “F,” “J,” “M,” or “Q” visa, who substantially complies with the requirements of the visa."

It appears that you would not count the days of FY2008 that you spent in F1 status towards the substantial presence total. It is as though you were physically outside the US for that time.

However, you may be able to take advantage of the 'Nonresident spouse treated as a resident' rule to allow you to file jointly. From P518 :

" If, at the end of your tax year, you are married and one spouse is a U.S. citizen or a resident alien and the other spouse is a nonresident alien, you can choose to treat the nonresident spouse as a U.S. resident. This includes situations in which one spouse is a nonresident alien at the beginning of the tax year, but a resident alien at the end of the year, and the other spouse is a nonresident alien at the end of the year.

If you make this choice, you and your spouse are treated for income tax purposes as residents for your entire tax year. Neither you nor your spouse can claim under any tax treaty not to be a U.S. resident. You are both taxed on worldwide income. You must file a joint income tax return for the year you make the choice, but you and your spouse can file joint or separate returns in later years."

You are the 'non-resident alien' for the purposes of reading the above paragraphs. I am not sure if you would be able to do this if you were not in F1 status at the end of FY2008 - you'd need to check the relevant part of P518. In any case I'd suggest carefully re-reading P518 to see if you and your partner meet the criteria for ' Non resident spouse treated as resident' and if you still have doubts consult a tax specialist.

The_English_Bride

I've got a headache! :curse:

rew1000

I don't blame you!

My take on your situation:

1. I expect that a joint filed tax return is going to be the better bet financially (you might want to check that though)

2. To file jointly, you need to be a "Resident alien"

3. Either you were a resident alien last year (which is complicated to ascertain) or, if you were married on 31 Dec 2008 to a US citizen/"resident alien" you can opt to be treated as a "resident alien".

If it was me, I'd follow the "opting to be treated as resident" instructions, perhaps adding a paragraph at the top of the letter saying "I can't work out if I'm nonresident or resident, but either way, I wish to be treated as resident".

The only downside that I can see to following the instructions for "nonresident spouse of resident, opting to be treated as resident" when you were in fact already a "resident alien" is that it involves attaching a statement making that choice, so you'd have to file on paper. If you were in fact a "resident alien", no statement would be required, and you could e-file if you wanted to.

The_English_Bride

Yes, I agree that choosing to be treated as a resident seems to be the best option for me. My husband had wanted to file online, the same way he always does, so it's a bit of a pain having to file on paper and mail it in.

Is it true that mailing a paper version takes longer?

mr_bluth

Slightly different situation for me, I became a US PR in June 2008 and was resident in the UK prior to that date. My tax return had to be paper filed also for this reason (declaring UK income).

Not sure on the forum policies on mentioning services so I won't say who, but we had a tax professional complete our return (we filed jointly) at a high street chain you may have seen advertised on TV. They worked out all the intricacies for us and didn't charge us too much. Also, with the calculated refund it was well, well worth us doing.

Happy to be more obvious about who we used if you'd like me to!

dbj1000

No need really. Given that they gave you incorrect advice about having to be paper filed, it's sure to be H&R Block. I hope you took their audit insurance, because that's sure to not be the only screw up on your return.

mr_bluth

Ok, that's worrying! I guess I should wait for the whole process to be complete before I recommend services in future - I'll update on how it goes for us.

There was actually another reason we had to paper file, the IRS themselves told us when we called, however H&RB didn't tell us that.

I'm off to cross my fingers and toes...

dbj1000

You'll be fine

I just can't stand H&R Block...