topic Should I file 1040 or 1040NR for tax year 2020? in Education

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

kemcaycalem — Tue, 23 Mar 2021 22:45:18 GMT

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

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

ErnieS0 — Tue, 23 Mar 2021 23:18:41 GMT

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.

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

pk — Tue, 23 Mar 2021 23:23:02 GMT

@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 ?

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

kemcaycalem — Wed, 24 Mar 2021 00:10:51 GMT

@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

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

kemcaycalem — Wed, 24 Mar 2021 00:08:04 GMT

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

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

ErnieS0 — Wed, 24 Mar 2021 00:37:32 GMT

@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?

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

kemcaycalem — Wed, 24 Mar 2021 00:58:24 GMT

@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?

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

ErnieS0 — Wed, 24 Mar 2021 01:02:44 GMT

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:

31 days during the current year (2020), and
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

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

pk — Wed, 24 Mar 2021 03:11:12 GMT

@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 ?

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

ErnieS0 — Wed, 24 Mar 2021 03:37:57 GMT

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.

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

pk — Thu, 25 Mar 2021 18:52:17 GMT

@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 ?

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

ErnieS0 — Thu, 25 Mar 2021 18:55:15 GMT

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

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

kemcaycalem — Fri, 26 Mar 2021 03:06:23 GMT

@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?

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

ErnieS0 — Fri, 26 Mar 2021 03:09:44 GMT

I defer to @pk

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

pk — Fri, 26 Mar 2021 19:29:25 GMT

@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 ?

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

LinaJ2020 — Fri, 26 Mar 2021 21:56:03 GMT

You are considered as a nonresident in 2020. Per IRS, if you held F-1visa in both 2014 and 2015 and then came back in 2018 until present, your five years exempt are 2014, 2015, 2018, 2019 and 2020. Also, the a five years exempt under F visa is considered as a life-time event. Therefore, if a student returns to the US with F visa multiple times for school, he or she will add up all those years while being present the US. Do not count the years while not present in the US.

Starting from January 1, 2021, if you stay more than 183 days in the US, you will be a resident and file Form 1040.

See reference, click here: http://blog.sprintax.com/us-tax-residency-status-explained/

@ErnieS0@kemcaycalem

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

pk — Fri, 26 Mar 2021 22:14:09 GMT

@LinaJ2020 , please see the IRS reference that I quoted earlier --- the poster is not immune to counting days after five calendar years from the original F-1 -- thus 2014 through 2018. 2019 he/she counts days even with a new F-1. So it is safe to say that 2020 he/she is indeed a Resident for tax purposes. Perhaps you missed that reference -- it is 26USC7701 under definitions. Granted it does not unequivocally state that absences during the five years can/cannot be carried over but implies that it cannot be carried over by the language used. Please see the ref above

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