Client filed a 2008 1040NR correctly. She had been in the country the required number of days to file as a resident alien. If I understand correctly, after she has been present in the US the required number of days, she can amend her 2008 return, filing as a resident alien and claim her spouse and child as dependents by attaching a W7 for each. Can she amend now or does she have to wait until she files her 2009 return?
Taxsurfer, what does resident alien has to do with filing amended return?. Most of my clients are immigrants and why would they be treated differently than US citizens? When it comes to paying or filling taxes the only thing that is required is whether the employer has hired legal worker. Legal in this case means you have a work permit and of course a social security. Therefore, someone with only certain type of visas may qualify for a work permit and social security. This is so not called citizenship or permanent resident alien Only the granting of a green card makes you a permanent resident ( by the way watch out for fakes) Certain benefits may not be available to non-permanent residents. However, being a permanent resident alien has nothing to do with how long you have been in the US. It has to do on what date the Immigration and Naturalization Services, now called Department of Homeland Security has issued a green card. You do not automatically become resident alien. You have to apply and qualify for it. One can be in this country 70 years and never qualifies for that. Please tell me on what date this person was granted a green card so I can tell you more if that person is permanent resident. If no green card, what type of visa is that person holder of?. Remember the more than six months rules when it comes to claiming dependents and other tests.
By the way the residency test applies to the dependent not the tax filler.To be a dependent, the individual must be US citizen, a U.S resident, or a resident of Canada or Mexico for some part of the calendar year in which the tax payer's year begins.
The rights for amendment are the same for any tax payers regardless of citizenship level, otherwise that would have been unfair. The question is under what rights are you claiming the amendment for?. You have not proven that to me yet
The confusion comes from what the general American public, including the press, calls citizenship because they never had to work hard for it therefore, they don't know what the different levels of legality are. Anyone who went those steps will never forget or confuse them. Let me know more details as this this entirely my type of expertise and domain
I believe the substantial presence test is applied as of the end of the year in question. So unlike the reverse situation, where a US person abroad may not qualify for the foreign earned income exclusion as of the end of the year, but may amend once they've had the requisite number of days abroad, there's no going back for aliens in the US.
I'm sorry Tijean, your answer is not correct.
First to the questioner - the amendment to any year may be filed at any time after the original has been filed, including the very next day after the return was mailed even if it has not yet been received and processed by the IRS.
In a few minutes, the answer to Tijean's misunderstandings.
Phoebe was answering simultaneously to me and (My God!) Phoebe isn't right either. Hang on a minute or two and I'll have the answer written.
Cool, I get to learn something new. :)
I couldn't reconcile in my head "client correctly filed 1040NR" with "client met the substantial presence test," in the absence of some unstated facts that lead to the filing of the NR.
Nlevy, did I ever say they can't file an amended return? I think you ought to read back again. I said they have the same rights that any US citizens have to file an amendment. However, the presumption of resident alien, if it is the base on the amendment, must be proven. The physical presence has nothing to do with that. This is an immigration issue first before it is a tax issue.
Also I may be away from this forum for a few days as I am going to be moderating other forums like GAAP issues with regional CPAs only and IMA forums for CMAs only and also, a University website forum where some of my posts will be in multi languages. I also have to present a tax live forum for at least a 1000- member ethnic congregation, most of them dealing with such issues So, if I don't answer to any of those posts assume that I am not reading them. Thanks
Residence/non-residence is both simple and a far more complicated matter than "do you have a green card" and "were you here 183 days". The Treasury will collect your money and refund your excess withholding without regard to your legal status. Yes, they have gotten fussier about people using phony SS #s and put onerous restrictions on getting the non SS Taxpayer ID number but fundamentally their job is to keep track of what the Treasury is owed and collect every possible penny of it - immigration is the business of other departments.
First - Residence for federal tax purposes is a matter of intention. If you come here on a visitor's visa, student or work visa, legally, illegally, or any other way, and you INTEND to remain living in the US - you are a Resident for tax purposes.
However, you cannot deduct dependents without their having legal status. The dependents may have legal status in their own right - already a citizen or a green card holder who has become disabled, for example. Or, the dependents may be legalized by the taxpayer gaining legal status.
In all cases, the Non-resident loses favorable deductions and the Resident gains the favorable deductions not available to the NR status. So, the first thing to look for - is there any reason NOT to claim resident status?
The main reason not to claim resident status is where a tax treaty applies - and you must therefore have a valid visa which is Temporary AND no intention to remain in the US beyond the terms of the visa purpose. In that case you claim Dual Status which gives you your US resident benefits AND your foreign national Treaty benefits. This requires filing a 1040 marked with DUAL STATUS at the top of the return, including the treaty election form, and filing the state (or states) only, as an NR.
See Pub. 519 for the more long winded version.
Tijean - you posted while I was eating lunch and writing. This is where you are NOT correct.
"However, the presumption of resident alien, if it is the base on the amendment, must be proven. The physical presence has nothing to do with that. This is an immigration issue first before it is a tax issue."
