Substantial Presence Test, Calculation

[JLK20]

Hi all,

I'm an F1 student and first arrived in 2015. I was exempt from the substantial presence test in 2015, 2016, 2017, 2018, 2019. I began counting days toward the test beginning 01/01/2020.

So in 2020, I become a resident for tax puposes (183 days on 07/01/2020). I filed 1040 as a resident in April 2020 for tax year 2019. Is my thinking correct? Or I can only file 1040 in 2021?

Thanks!

[pk · Accepted solution]

@JLK20  since you were admitted to the USA on F-1  ( and assuming that you had no other earlier visits etc. ), you are exempt from counting days for SPT till 12/31/2019.  Therefore for the tax year 2019 you are Non-Resident Alien .  Thus your return for the year 2019 MUST be filed on form 1040-NR or 1040-NR-EZ ( neither of these forms are supported by TurboTax.  Your choices for filing  (a) Your school's foreign  student office for help; (b) SprinTax, partner of TurboTax or (c) local tax professional familiar with international filing.

For tax year 2020  ( to be filed by April 2021 ), you would probably qualify for the Substantial Presence Test and there may have to file on form 1040 using TurboTax or similar service.

Does this answer your question ?

[JLK20]

Hi pk, 

Thank you very much for your answer! I got the SPT wrong because I was confused between calendar year and tax year. We file tax for the year before. Although in year 6 I become a resident for tax purposes, I was a non-resident in year 5.

This would be helpful for future readers. 

I will amend using 1040-X, include 1040-NR (which my school helps by giving us discount code for Sprintax) and pay the tax due. Thanks again!

[pk]

@JLK20  you cannot use 1040-X --- you will file a new return using form 1040-NR or 1040-NR-EZ and attach a copy of  the 1040 return filed plus a letter explaining that this was an error in filing.   This is because a return must be filed using the correct form, otherwise it  counts as " not filed".  So IRS has to purge the form 1040 from your account.  Good Luck

[JLK20]

I read on the 1040-X instruction as well as other posts in the forum, and saw this.

Resident and nonresident aliens. Use Form 1040-X to
amend Form 1040NR or Form 1040NR-EZ. Also, use Form
1040-X if you should have filed Form 1040 (or, for years before
2018, Form 1040, 1040A, or 1040EZ) instead of Form 1040NR
or 1040NR-EZ, or vice versa.
To amend Form 1040NR or 1040NR-EZ, or to file the correct
return, do the following:
• Enter your name, current address, and social security number
(SSN) or individual taxpayer identification number (ITIN) on the
front of Form 1040-X.
• Don’t enter any other information on page 1. Also, don’t
complete Parts I or II on page 2 of Form 1040-X.
• Enter in Part III the reason why you are filing Form 1040-X.
• Complete a new or corrected return (Form 1040, 1040-SR for
amended 2019 and later returns, Form 1040NR, etc.).
• Across the top of the new or corrected return, write
“Amended.”
• Attach the new or corrected return to the back of Form
1040-X.
For more information, see Pub. 519, U.S. Tax Guide for
Aliens.

From page 8 of 1040-X instruction. Am I understanding it correctly that we use 1040-X (only Part III) and fill out a new 1040-NR if we mistakenly used form 1040? Thanks!

[rjs]

---

@JLK20 wrote:

Am I understanding it correctly that we use 1040-X (only Part III) and fill out a new 1040-NR if we mistakenly used form 1040? Thanks!

---

@JLK20  Yes, you are reading it correctly. Do what the 1040-X instructions say.

[pk]

@JLK20  kind of disagreeing here  ( both with you and @rjs  )-- I show below the instruction for form 1040-X 

page 8-->

Resident and nonresident aliens. Use Form 1040-X to
amend Form 1040NR or Form 1040NR-EZ. Also, use Form
1040-X if you should have filed Form 1040 (or, for years before
2018, Form 1040, 1040A, or 1040EZ) instead of Form 1040NR
or 1040NR-EZ, or vice versa.
To amend Form 1040NR or 1040NR-EZ, or to file the correct
return, do the following:
• Enter your name, current address, and social security number
(SSN) or individual taxpayer identification number (ITIN) on the
front of Form 1040-X.
• Don’t enter any other information on page 1. Also, don’t
complete Parts I or II on page 2 of Form 1040-X.
• Enter in Part III the reason why you are filing Form 1040-X.
• Complete a new or corrected return (Form 1040, 1040-SR for
amended 2019 and later returns, Form 1040NR, etc.).
• Across the top of the new or corrected return, write
“Amended.”
• Attach the new or corrected return to the back of Form
1040-X.

The question here is what do they mean  by "new" -- to me it means a new corrected return not a completely NEW

The same general information about the use of form 1040-X to AMEND is on page 35 of 2019 Pub 519-->

Amended Returns
and Claims for Refund
If you find changes in your income, deductions,
or credits after you mail your return, file Form
1040-X, Amended U.S. Individual Income Tax
Return. Also use Form 1040-X if you should
have filed Form 1040 or 1040-SR instead of
Form 1040-NR or 1040-NR-EZ, or vice versa.
If you amend Form 1040-NR or Form
1040-NR-EZ or file the correct return, print
“Amended” across the top, and attach the corrected
return (Form 1040, 1040-SR, Form
1040-NR, or 1040-NR-EZ) to Form 1040-X. Ordinarily,
an amended return claiming a refund
must be filed within 3 years from the date your
return was filed or within 2 years from the time
the tax was paid, whichever is later. A return
filed before the final due date is considered to
have been filed on the due date.

Note that here they are generally dealing with making the first year choice, filing with a resident spouse and/or cancel the choice and/or other reasons for amending the filed form.   FILED here means a return filed on CORRECT form.

Hence I maintain my stand that you have to file a new return  on form 1040-NR or 1040-NR-EZ , an explanation letter  that the original 1040 was in error and attach a copy of the filed /accepted 1040 return.  You will have to file by mail so it gets human intervention.

I am sure SprinTax will guide you through this -- they do have expertise in  this area.

[AmeliesUncle]

@pk   

Right after your bold "amend" it says:

Also, use Form1040-X if you should have filed Form 1040 (or, for years before 2018, Form 1040, 1040A, or 1040EZ) instead of Form 1040NR or 1040NR-EZ, or vice versa.

[mhaseebmlk]

@pk does the exemption from counting days for SPT apply even if you switched over to an H1B? For example, if you entered on an F1 in 2017, but then switched over to H1B in 2020, would you file as a non resident for 2020 even if you met the SPT had you counted the days in 2020 that you were on H1B ? Or are you exempt from SPT till 2022 (2017 + 5 years) and would therefore file as NR till 2022 as long as you're a non-immigrant?

[pk]

@mhaseebmlk , the exempt from counting days present applies  ONLY for the visa under which it was  granted -- thus for F-1  ( and the dependent visas for that F-1) the five Calendar years , are valid   ONLY as long as person meets the  requirements of the visa.  So in your particular case , the exempt status   was valid  Jan 1st 2017 through  the last full day before your visa was changed to H-1B.   From that day on-wards  you would be counting all full days present towards SPT.

Does this answer your query and/or can I do more for you ?

pk

[mhaseebmlk]

@pk that does answer my question. Thank you!