Should I file 1040 or 1040NR for tax year 2020?

[kemcaycalem]

Hi. I wonder whether I am considered as resident or non resident alien. I have been to US twice as F1 visa.  I left the US in 04/2014 and came back in 08/2018. Am I eligible to file as resident? Look like I have 5 years F1 status and meet the substantial presence test.

09/2014 - 04/2015: F1

08/2018 - present:  F1

[ErnieS0]

Yes you have five years, but you would still be a nonresident for 2020, which is the tax year we are filing now. 2020 is your fifth year.

File as a nonresident. You can use our partner Sprintax.com.

[pk]

@kemcaycalem , assuming that your original F-1  triggered the five year " exempt" status, yes  , your five year exempt  terminated  on 12/31/2018  (  2014.2015.2016. 2017 and 2018). Thus  your 2019 presence   counted towards  the substantial presence test.  So absent any other facts/ circumstances you were  resident for tax purposes  for 2019 and 2020.  How did you file 2019 or did you not have any income to report ?  Which country are you from ?

[kemcaycalem]

@pkI filed in sprintax last year. Another thing is 5 year exempt. I didn't stay in the US in 2016, 2017 and my previous F1 was expire in 2015. I applied for new school in 2018. Why does it count 5 year exempt?

I'm from Vietnam

[kemcaycalem]

@ErnieS0 I spoke to sprintax support. They suggest filing in here. I'm quite confused.

[ErnieS0]

@kemcaycalem I'm confused too. An F-1 Visa is exempt for any part of five years, so I get:

1    2014
2    2015
3    2018
4    2019
5    2020
 

Even if you start at the beginning of August, it doesn't total to 183 days. Could they have misunderstood you because you had a break between 2015 and 2018?

[kemcaycalem]

@ErnieS0 

I have income in 2020 so I have to file tax for 2020.

How can you come up with less than 183 days? Am I correct in this calculation?

2021: 82 days

2020: 366/3 = 122

2019: 365/6 = 60.83

Total: 264.83

Another thing is 5 year exempt. 2020 is the fifth year so am I eligible to claim FICA?

[ErnieS0]

You are filing a 2020 income tax return (for the year ended December 31) to 2021 days don't count for being present in 2020. Exempt days do not count.

You will be considered a United States resident for tax purposes if you meet the substantial presence test for the calendar year. To meet this test, you must be physically present in the United States (U.S.) on at least:

1. 31 days during the current year (2020), and
2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
   • All the days you were present in the current year, and
   • 1/3 of the days you were present in the first year before the current year, and
   • 1/6 of the days you were present in the second year before the current year.

Substantial Presence Test

[pk]

@kemcaycalem , the five  year exempt status  ( since you entered the country in 2014) was for the full year of 2014, 2015, 2016, 2017 and  till the end of  2018.   Changing schools or being absent for a while  does not  add the original  exempt period.  If you got a new F-1 then  since you have already  were granted one  exempt status for the first F-1 , there will be no more.  Thus  sometime in 2019  or 2020 you met the  substantial  presence  test -- depending on the exact number of days present in the USA.

So I agree with SprinTax  that for 2020 you file as a resident for tax purposes.   Sorry  I have to disagree with @ErnieS0 

Does that clear up the matter or do you need more  on this ?

[ErnieS0]

I have not seen any references stating that you can count years when are never physically present for one day in the U.S. towards the lifetime lookback period. Perhaps you can provide a reference @pk. That would be a great help to others.

[pk]

@ErnieS0 , @kemcaycalem ,  please see the  info below from the  26USC 7701 -- definitions:  https://www.law.cornell.edu/uscode/text/26/7701

"  (E)Special rules for teachers, trainees, and students

(i)Limitation on teachers and trainees

An individual shall not be treated as an exempt individual by reason of clause (ii) of subparagraph (A) for the current year if, for any 2 calendar years during the preceding 6 calendar years, such person was an exempt person under clause (ii) or (iii) of subparagraph (A). In the case of an individual all of whose compensation is described in section 872(b)(3), the preceding sentence shall be applied by substituting “4 calendar years” for “2 calendar years”.

(ii)Limitation on students

For any calendar year after the 5th calendar year for which an individual was an exempt individual under clause (ii) or (iii) of subparagraph (A), such individual shall not be treated as an exempt individual by reason of clause (iii) of subparagraph (A), unless such individual establishes to the satisfaction of the Secretary that such individual does not intend to permanently reside in the United States and that such individual meets the requirements of subparagraph (D)(ii). "

My position is based on the underlined text --- even though it makes  no direct reference to what  happens when a  student is absent  for a few years  ( especially if required to  because  of  his home country requirement ( such as military service as in Israel ) -- perhaps the treaty would cover that ( I have not studied the Israel one  but none others  nor the  general format allows for this ).

Does this close this ? 

[ErnieS0]

@pk You're a ROCK STAR! Keep delivering awesome!

[kemcaycalem]

@pk @ErnieS0 Thanks for your explanation. After all, I don't know whether I am consider as resident or non resident for tax purpose. Do you have any suggestions? Do I get any trouble if I file wrong form?

[ErnieS0]

I defer to @pk

[pk]

@kemcaycalem ,  please file your return as a resident for tax purposes  i.e. Form 1040  . You can use TurboTax for the preparation and  filing.  Note that you will now be taxed on your world income. Since you have filed before , I am assuming that you do have a Tax ID--TIN  ( either SSN or ITIN ).

Also , if you file using the wrong form ( i.e. you file using  form 1040-NR instead of using  form 1040 ), you will have to file an amended return to correct the error and there may be tax consequences  depending on the exact facts and circumstances.

Is there more  we can do for you ?