Taxes - Filing as a non resident.

[cmartyn 0]

On the N-400, there is a question which asks:

Have You EVER filed with non-resident status after becoming a permanent resident. Well, Yes, Most folks probably did the first year. My wife got here in late April of 05 and for the 05 tax year, she filed as a non-resident on the advice of our accountant. She did file a US return however. Will this cause any issues with the N-400? We will be able to file the N-400 in seven months. Just thinking ahead!

Edited March 23, 2007 by cmartyn

[YuAndDan 153]

The question is asking "Did you file as a non-resident after getting the green-card?"

This is what they are trying to get at:

You may be found to have abandoned your permanent resident status if you:

• Move to another country intending to live there permanently.
  
• Remain outside of the US for more than one year without obtaining a reentry permit or returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
  
• Remain outside of the US for more than two years after issuance of a reentry permit without obtaining a returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
  
• Fail to file income tax returns while living outside of the US for any period.
  
• Declare yourself a “nonimmigrant†on your tax returns.
  

http://www.uscis.gov/portal/site/uscis/men...00045f3d6a1RCRD

Is OK to be declared as a Non-Immigrant before becoming a permanent resident (Green-Gard holder), not after, it is a sign of abandoning permanent resident status.

Edited March 23, 2007 by YuAndDan

[cmartyn 0]

Well pffft.. that makes no sense at all. What if you get your green card say in November. Then what, just because you have a green card, you are going to file as a resident for the whole year? I kind of get the point of the question. But she qualifies under the Bona Fide residence Test to make her tax home in Canada for the year she immigrated. She’s just following the law and the advice of her financial advisor. I was hoping someone else may have run into this issue themselves and am curious on how they may have dealt with it or if it even became an issue.

[cmartyn 0]

Just to mention further, we filed a joint 1040. Not a 1040 NR or anything like that. The only resident type questions are in the foreign earned income statement (2555) where it asks about her foreign address and employer. It is here, in part II of the 2555 where she qualifies herself for the foreign earned income exclusion under the Bona Fide Residence test.

So, at this point, what did she do? Did she file as a non-resident and throw away her chances at becoming a USC? Or, did she simply take a foreign earned income exclusion as a permanent resident? Lawyers love this ####### I am sure lol. I am thinking we just answer NO instead of YES and then act confused if they say anything, which is appropriate in this case anyways.

[warlord 72]

I had always filed as a resident when I was on TN status, way before the green card. The IRS's Resident is quite different from the USCIS's resident. For the IRS, if you have lived and worked (regardless of nationality, immigration status) in the US for more then I think 6 months, you need to file as a resident. So doesn't matter if you had a green card, EAD, H1-b or what, if you've been in the US working for more then 6 months (might be shorter) you need to file as resident...

[zyggy 9]

Well pffft.. that makes no sense at all. What if you get your green card say in November. Then what, just because you have a green card, you are going to file as a resident for the whole year? I kind of get the point of the question. But she qualifies under the Bona Fide residence Test to make her tax home in Canada for the year she immigrated. She’s just following the law and the advice of her financial advisor. I was hoping someone else may have run into this issue themselves and am curious on how they may have dealt with it or if it even became an issue.

Yes.. that's the way US tax law reads.. if you got your Permanent Resident Status on December 31, you are considered a resident alien for tax purposes for the entire tax year...

[zyggy 9]

Just to mention further, we filed a joint 1040. Not a 1040 NR or anything like that. The only resident type questions are in the foreign earned income statement (2555) where it asks about her foreign address and employer. It is here, in part II of the 2555 where she qualifies herself for the foreign earned income exclusion under the Bona Fide Residence test.

So, at this point, what did she do? Did she file as a non-resident and throw away her chances at becoming a USC? Or, did she simply take a foreign earned income exclusion as a permanent resident? Lawyers love this ####### I am sure lol. I am thinking we just answer NO instead of YES and then act confused if they say anything, which is appropriate in this case anyways.

She only took the foreign income exclusion as a permanent resident... If you read the legend on the 2555 it states Foreign Income Exclusion fo US Citizens and Resident Aliens. What the N-400 is getting at is did she file a 1040-NR... a tax return specifically for non-residents...

In this case, she filed her tax return as a resident alien, you can safely check the No box...

[cmartyn 0]

Yay.

Thanks Everybody. We are going to say NO on that box.

<sigh>

Only 6 months to go.

[Yodrak 7]

YuAndDan,

Note that cmartyn's wife got her green card in April of 2005, on her arrival in the USA. She was a LPR when she filed her 2005 tax return.

Yodrak

The question is asking "Did you file as a non-resident after getting the green-card?"

.....

Is OK to be declared as a Non-Immigrant before becoming a permanent resident (Green-Gard holder), not after, it is a sign of abandoning permanent resident status.

[john_and_marlene 162]

She’s just following the law and the advice of her financial advisor.

I doubt a financial advisor will be looking out for her immigration welfare. The best financial solution may not match the best immigration/naturalization solution.

[cmartyn 0]

She’s just following the law and the advice of her financial advisor.

I doubt a financial advisor will be looking out for her immigration welfare. The best financial solution may not match the best immigration/naturalization solution.

I agree. Thats my job :-) But it would have cost like 8000.00 in taxes had he not taken the exclusion. Shoot me for being a greedy pig. But I don't think the exclusion is the same as filing as a non resident. Interestingly enough, on Part II, question 14 of the 2555, he left it blank. When I questioned him on this he says that that is always left blank unless you are trying to build a case where you are trying to make your tax home abroad for the first time. I dunno, he studies this stuff, I don't.

[meauxna 15]

Well pffft.. that makes no sense at all. What if you get your green card say in November. Then what, just because you have a green card, you are going to file as a resident for the whole year?

Yes, exactly.

The DAH became a PR in November 03. He had to file as a resident for that entire year.

[cmartyn 0]

Yeah, I think that makes sence to me now. Becauae of the exclusion. There a tax guy in Canada running numbers for cities like Toronto vs Detroit, Vancouver vs. Washington and using incomes like 60K USD, hes coming up with lower taxes in Canada vs the US. Interesting.

[sparkofcreation 0]

Just to mention further, we filed a joint 1040. Not a 1040 NR or anything like that. The only resident type questions are in the foreign earned income statement (2555) where it asks about her foreign address and employer. It is here, in part II of the 2555 where she qualifies herself for the foreign earned income exclusion under the Bona Fide Residence test.

So, at this point, what did she do? Did she file as a non-resident and throw away her chances at becoming a USC? Or, did she simply take a foreign earned income exclusion as a permanent resident? Lawyers love this ####### I am sure lol. I am thinking we just answer NO instead of YES and then act confused if they say anything, which is appropriate in this case anyways.

It sounds like she took the foreign earned income exclusion as a resident, which is what most people do. Or at least, it sounds like what we did, and we definitely filed with G. as a resident every year including the year he moved here, before he had his green card.

I believe that if she were filing as non-resident you'd have had to file MFS because MFJ requires both spouses to be resident in the US.

[zyggy 9]

Well pffft.. that makes no sense at all. What if you get your green card say in November. Then what, just because you have a green card, you are going to file as a resident for the whole year?

Yes, exactly.

The DAH became a PR in November 03. He had to file as a resident for that entire year.

It's no different that if you had a baby born on December 31 or you got married on December 31... you get to claim the baby or file as married for the entire tax year...

There has to be a cutoff at some point... in taxes, it's December 31...