pk
Level 15
Level 15

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@jimtony , having gone through your response to my questions, what I get is  ( in addition to my earlier notations):

1. You , Norwegian citizen, entered US with K-1 visa in May 2021.  You continued to work for your employer ( in Norway )   remotely  and lived in MA  till June 2022.

2. From June XX, 2022 you moved to FL and continued to work remotely for your employer in Norway.

3.Your employer in Norway has been considering you an employee  and therefore has withheld  required  Norwegian taxes and Social Security there in Norway.

3. This opens up the issue of work permit:

                           (a) After admission to the USA, you must have filed a form I-765 requesting permission to work --- this would have given  you a permit to work for  90 days  -- so from June 2021  till  Sept. 2021  OR

                           (b) you filed a form I-765 along with form I-485 ( for a green card ) --- this would have given you work permit for  12 months  and renewed  every year till Green Card decision is made.

I am assuming that you followed path (b) above  and therefore are authorized to work.

Note that in either case  you would have been treated as a Non-Resident Alien  till passing of  Substantial Presence Test or granting of the  Green Card.

4. Whether you are permitted to work or not , you obviously continued to work remotely for your  foreign employer.

Therefore  you need to recognize  your  US based income for the period of the first six months  ( 183 days from admission ) and then world income thereafter ( since you would be Resident Alien for tax purposes , even without Green Card).  

5. Because  you performed the work remotely , the income is US sourced  and  under the treaty  US has the right to tax that income.

What this means is that for the  tax year 2021, you could file as a dual status taxpayer i.e. 1040-NR for the period  May through  Oct of 2021 and 1040 for the period  Nov through Dec. 2021.   You could also file the whole year as Resident for tax purposes -- this would  make  filings easier, allow the use of standard deduction and may also allow filing as joint with your spouse -- obviously, this would necessitate and amendment of his already filed return. Else you can file on your own -- you already have an SSN.  This would also mean that you would have to pay  interest and possible penalty for late paying ( you have till Oct 15th  for the new 2021 without failure to file penalty) .  This also would mean that you would be liable for MA taxes for the year 2021.

6. For 2022, it is much easier, since you are planning to file joint -- the only complication would be that you would have to file MA  ( but not FL since FL does not have individual income tax).

7.The filing of the form 8802 is not connected to your  tax filings --- you file this to prove to Norway that you were a resident of US during the period May through Dec of 2021 and hopefully can get all your taxes and Social Security back.  Note that as a Self-employed you pay roughly 15.3% of your  net earnings ( that is gross invoice less any allowable expenses, of which there not that many ).

8. Note that all this monies being paid in Norway bank account implies that you need to file FBAR     ( www.fincen.gov , form 114--online only  ) for both 2021 once you became a resident for tax purposes.  

9. An argument could be made that  ( assuming that you did not apply for work permit ) the remote work  did not generate any income here in the USA --  and you had closer connection to Norway at least till passing the SPT, getting married and applying for  Green Card etc.  ---- but in my opinion  this weak and more likely to fail than sustain.

 

It is a difficult situation and I would advise you to seek a tax professional  familar with international taxing and treaty assertions.

 

Did I forget anything ?

Is there more I can do for you ?

 

pk