I'm an exchange student from China. I got the green card. Could I still apply the US-China treaty article 20 for student, if I file the tax jointly with my husband?
Thank you in advance!
Yes. You can still apply the treaty to your situation.
Tax treaties apply to foreign nationals
who are residents (not citizens) of one or both of the
treaty countries. Treaty country residents are foreign
nationals who are subject to income taxes as a tax
resident under the internal law of the treaty country.
For U.S. tax purposes, foreign nationals are residents
subject to tax on worldwide income if they are U.S.
lawful permanent residents, also called “green card
holders,” or are substantially present in the United
States based on the 183-day residency formula.
See below for reference:
https://tax.thomsonreuters.com/wp-content/pdf/indirect-tax/Tax_Treaty_Benefits_WP.pdf
@maquejing Hello, I am facing the same situation. Did you apply for the treaty benefit and did you succeed? Thanks a lot!
It is possible to take a treaty position if you're a green card holder, but you can’t file a joint return in that case (and you might be opening a can of worms by doing so). You’re required to file the 1040NR each year like a non-resident (that’s why no joint return), with Form 8833 attached to disclose the treaty-based position. But you also have to continue with whatever informational returns (FinCEN 114, 8838, etc.) are applicable, like a resident. (The IRS discusses this here.)
Even more concerning is the fact that since you’re essentially contradicting the idea of the green card with this position (applying the tie-breaker rule of the treaty definitely emphasizes your ties to the other country) there can be possible non-tax implications. david4286608, since we're not able to discuss that here, if you’re still interested in doing this, I highly recommend you speak with some legal/immigration advisors, to be completely comfortable before proceeding!