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I have been in the US on a F1 visa for just over a year now; got married to an US Citizen recently in late 2012. We live in California.

My questions are:

  1. Can I, as the husband of a US Citizen, choose to file as a non-resident if I filed a "married filing separately" tax return?
  2. If I am allowed to file as a non-resident, do I have to pay FICA on my income?

I found a useful presentation online htat can serve as a useful guide: http://www.mhaven.net/Docs/Foreign%20Slides.pdf

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I think we've covered your question well in its previous iteration, why are you asking the same question again? –  littleadv Jan 4 '13 at 0:34
    
@littleadv: Yes, you did answer my first question with "You both either file MFS, or MFJ. If you file MFS - you can be NR (if your immigration status allows that)" in your link, but I would request clarification on 2 as well, possibly with some references. One CPA I went to explicitly denied 1 is possible so I am confused ATM and would appreciate more inputs. –  sekharan Jan 4 '13 at 0:38
    
I'm not sure what you mean by "One CPA I went to explicitly denied 1". You cannot file as resident MFS. Is that what you meant? If you file as MFS - you file NR, no choice there. If you file as MFJ - you file as resident. No choice there as well. You have the choice whether to file MFS (=>NR) or MFJ (=>R), if you file MFS(=>NR) your wife must file MFS(=>R). –  littleadv Jan 4 '13 at 1:14
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to correct my prior comment: if you file MFS(=>NR) your wife must file MFS(=>R) or HOH(=>R) if you have kids. –  littleadv Jan 4 '13 at 1:24

1 Answer 1

up vote 3 down vote accepted

OK, I'll bite and summarize it all again.

Can I, as the husband of a US Citizen, choose to file as a non-resident if I filed a "married filing separately" tax return?

You can file either as a non-resident MFS (married filing separately) OR resident MFJ (married filing jointly) with your wife. You cannot file resident MFS because, as you correctly stated, your presence on F1 is excluded from the 183 days rule for up to 5 years.

If you file as non-resident MFS your wife must file as resident MFS (or HOH - head of houshold - if you guys have dependents).

You can only file one return. If you file MFS - you can only file 1040NR (your wife files separately a 1040). If you file MFJ - it includes both you and your wife, and is a regular 1040 (one filing for both of you together).

If I am allowed to file as a non-resident, do I have to pay FICA on my income?

As we've discussed before, if you're resident for tax purposes - you have to pay FICA. If you're non-resident for tax purposes, you're exempt from FICA because you're F1 (not any non-resident may be exempt).


From your comment:

Re. your questions, all but one of the advisers I met told me I can only file resident MFS as I was married to a citizen and cited a 183 day rule for the SPT (but I am sure F1's are exempt from that rule for upto 5 years)! The one that did know that I could file nonresident MFS suggested I file joint because I would be making SSA contributions that would be beneficial to my future (I'm not really interested in that as I still have many years of work ahead of me).

They're wrong, all but one. The one that's right is also right about the SSA entitlements, but that's up to you.


Disclaimer, to be on the safe side: this is in no way a tax advice and you cannot rely on whatever I wrote, here or elsewhere, as it was not written or intended to be used, and cannot be used, for the purpose of avoiding any tax related penalties that may be imposed on you or any other person under the Internal Revenue Code.

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THANK YOU! I would really appreciate if you could put some time into pointing out the flaws in this question though: money.stackexchange.com/questions/19035/…. I would like to know where I am wrong in my calculations - atleast the N/2 part –  sekharan Jan 4 '13 at 3:52
    
The SSA entitlements is really hard to calculate - if I work for 45 years from now, how much of a change do I see by contributing to FICA for 2012 versus not? (but perhaps that is a separate question) –  sekharan Jan 4 '13 at 3:54
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@sekharan - If you're filing as resident - get a Turbotax or HRBlock software. If you're filing as non-resident - use CINTAX at your school. Don't do the calculations manually. –  littleadv Jan 4 '13 at 3:54
    
@sekharan SSA also includes entitlements to survivors. You never know when something bad might happen to you... –  littleadv Jan 4 '13 at 3:55
    
Unfortunately our school has no CINTAX subscription, but I have no qualms about doing it by hand provided my process is correct –  sekharan Jan 4 '13 at 3:56

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