OPT --> GC Joint Tax Return Question

[SDRacerr1 0]

We have a very specific question that we have been looking around to answer but cant find. We are hoping someone in our same position might be able to answer.

When you are on an OPT you are not required to pay FICA taxes. We recently got married in September and are in the AOS process. We want to do a joint tax return to help us with more evidence of a bonafide marriage. To file a joint return my wife (NRA) needs to provide an election stating she wants to be taxed as a US Resident.

Question:

Is she now responsible to pay all the FICA taxes from 2011 that she wasn't required to from being on an OPT, because now she wants to be taxed as a US resident.

I know this is specific, thank you in advance for the advice.

[Harpa Timsah 13,258]

FICA are the taxes for medicare and Social Security. The tax return you file is only an income tax return, Medicare/SS pay-ins are ignored. If you fill a tax form out, it should be clear that those taxes are not a part of the calculations at all. Good luck.

[CC90 90]

How long has she been in the US?

[CC90 90]

FICA are the taxes for medicare and Social Security. The tax return you file is only an income tax return, Medicare/SS pay-ins are ignored. If you fill a tax form out, it should be clear that those taxes are not a part of the calculations at all. Good luck.

This isn't correct. For any non-witheld FICA taxes, they must be paid to the IRS with your return. They are also collected with "self-employment" tax if filing a Schedule C.

http://www.irs.gov/pub/irs-pdf/n989.pdf

Edited January 20, 2012 by CC90

[I AM NOT THAT GUY 5,715]

Also see these:

http://www.irs.gov/businesses/small/international/article/0,,id=131635,00.html

http://www.irs.gov/businesses/small/international/article/0,,id=96370,00.html

[SDRacerr1 0]

This isn't correct. For any non-witheld FICA taxes, they must be paid to the IRS with your return. They are also collected with "self-employment" tax if filing a Schedule C.

http://www.irs.gov/pub/irs-pdf/n989.pdf

She has been here since August of 2009, and started working in March of 2010. So from January 1, 2011 - December 31st she worked with the same company. And because on OPT, never was required to pay FICA.

I called the IRS, and the "help line" person, went by Publication 519 page 10 that said:

If you make this choice, you and your spouse are treated for income tax purposes as residents

for your entire tax year. Neither you nor your spouse can claim under any tax treaty not to be

a U.S. resident. You are both taxed on world-wide income. You must file a joint income tax return for the year you make the choice, but you

and your spouse can file joint or separate returns in later years.

He said because of that, she would be required to pay all missing FICA taxes, which would like $2000+

[Harpa Timsah 13,258]

Huh... How do you go about paying the FICA? The first link you have is for self-employment stuff. Your link also says "If you make this choice, you and your spouse are treated as residents for your entire tax year for the purpose of your federal individual income tax return, and for the purpose of withholding U.S. federal income tax from your wages. " FICA is not income tax, right?

[I AM NOT THAT GUY 5,715]

In addition, you may still be treated as a nonresident alien for the purpose of withholding Social Security and Medicare tax. Refer to Aliens Employed in the U.S. – Social Security Taxes.

First link is referred to by the second link. Don't worry about the headers, pay attention to text.

[SDRacerr1 0]

Huh... How do you go about paying the FICA? The first link you have is for self-employment stuff. Your link also says "If you make this choice, you and your spouse are treated as residents for your entire tax year for the purpose of your federal individual income tax return, and for the purpose of withholding U.S. federal income tax from your wages. " FICA is not income tax, right?

FICA are required to be paid and are automatically taken out of your paycheck unless you are on certain visas like F1, J1 etc.

Also see these:

http://www.irs.gov/businesses/small/international/article/0,,id=131635,00.html

http://www.irs.gov/businesses/small/international/article/0,,id=96370,00.html

So, am i reading this right...Under the second link...She wont be responsible as it stated: However, for the purpose of Chapter 3 withholding you may still be treated as a nonresident alien.

[SDRacerr1 0]

It also says this:

Limitations on exemption:

The exemption does not apply to spouses and children in F-2, J-2, M-2, or Q-3 nonimmigrant status.

The exemption does not apply to employment not allowed by USCIS or to employment not closely connected to the purpose for which they were admitted into the United States.

The exemption does not apply to nonimmigrants in F-1,J-1,M-1,or Q-1/Q-2 status who change nonimmigrant status to a status which is not exempt or to a special protected status.

The exemption does not apply to nonimmigrants in F-1,J-1,M-1, or Q-1/Q-2 status who become resident aliens for tax purposes.

So that sounds to me, now she is responsible for those...

[Harpa Timsah 13,258]

First link is referred to by the second link. Don't worry about the headers, pay attention to text.

What you quoted says she may not have to pay FICA, which is what I said. I thought you were backing up the post prior to yours and disagreeing with me.

[I AM NOT THAT GUY 5,715]

So, am i reading this right...Under the second link...She wont be responsible as it stated: However, for the purpose of Chapter 3 withholding you may still be treated as a nonresident alien.

That is the way I read it, in my layman's view: The election to be treated as a Resident Alien for tax purposes do not affect the withholding (or not) of FICA and Medicare taxes.

What you quoted says she may not have to pay FICA, which is what I said. I thought you were backing up the post prior to yours and disagreeing with me.

Nope. Just throwing out more stuff on the subject.

[I AM NOT THAT GUY 5,715]

It also says this:

Limitations on exemption:

The exemption does not apply to spouses and children in F-2, J-2, M-2, or Q-3 nonimmigrant status.

The exemption does not apply to employment not allowed by USCIS or to employment not closely connected to the purpose for which they were admitted into the United States.

The exemption does not apply to nonimmigrants in F-1,J-1,M-1,or Q-1/Q-2 status who change nonimmigrant status to a status which is not exempt or to a special protected status.

The exemption does not apply to nonimmigrants in F-1,J-1,M-1, or Q-1/Q-2 status who become resident aliens for tax purposes.

So that sounds to me, now she is responsible for those...

It does look that way. Time to ask several IRS reps, and see if you get a consensus.

[Dave&Roza 748]

Back when I worked for a university with a state sponsored retirement plan, they did not collect FICA for me; same for a school district I worked for as a teenager. I never had to pay the FICA myself. When I received my SSA letter stating about my income and expected benefits, those years are zero, but my income was what was reported on my income tax returns. So my benefits are lower because for a few years I did not pay into the system. IRS is internal REVENUE service and SSA is social security adminstration, two seperate departments with two seperate rules. So I would not expert someone from the IRS to know anyhting about FICA just as I would not expect them to know about a K-1 visa .

I claimed my wife as a LPR for the entire year. Claimed her income and converted it to USD as it benefited me to do so. I did not worry about paying FICA as she was not self-employed, but worked for a foreign company. Do you expect the foreign company to poney up their share of the FICA or do you expect the foreign worker to pay the entire 15.3%? Since it is a payroll tax collected automatically from your US earnings, I do not think a foreign worker in a foreign country needs to pay it--IMHO. Of course my wife's earnings in her home country amounted to less than one months salery for myself.

I would claim her income for the IRS and not worry about the FICA.

Dave

[I AM NOT THAT GUY 5,715]

Wages paid to resident aliens employed within the United States by an American or foreign employer are subject to Social Security/Medicare taxes under the same rules that apply to U.S. citizens.

Wages paid to nonresident aliens employed within the United States by an American or foreign employer, in general, are subject to Social Security/Medicare taxes for services performed by them within the United States, with certain exceptions based on their nonimmigrant status. The following classes of nonimmigrants and nonresident aliens are exempt from U.S. Social Security and Medicare taxes:

http://www.irs.gov/businesses/small/international/article/0,,id=131635,00.html

Edited January 20, 2012 by ☼