Should I file an amended return as I wrongly filed Form 1040 instead of Form 1040 NR?

Question

I filed my taxes through an agent for the year 2014 but the agent filed using Form 1040 and I found out from other sources that I had to file Form 1040 NR, as in 2014, I was in the U.S. for only last ~2 months.

Because of that, I don't pass the IRS' Substantial Presence Test, because I hadn't been in the U.S. for at least 183 days last year (as mentioned in its second point). And also as I don't hold a green card and I am in the U.S. on H-1B Visa, therefore, I was a non-resident in the U.S. in 2014.

Considering all these points, should I be filing an amended form i.e. Form 1040X and also should I send Form 1040 NR now, too, as the form I filed was Form 1040?

Can I do that myself or I have to have ping a lawyer? And how much will it cost me?

It's been 3 weeks since I filed the wrong form i.e. Form 1040 and I haven't received a refund or notice from the IRS yet. Should I wait for the IRS to send a notice or is it safe to just go ahead with filing an amendment?

Answer 1

should I be filing an amended form i.e. Form 1040X and also should I send Form 1040 NR now, too, as the form I filed was Form 1040?

Assuming your determination is correct (that you should have filed NR) and you're not making a first year election, yes you should. In fact, even if you do make the first year election (which would make you dual status - part year non-resident and part year resident), you should still amend.

Can I do that myself or I have to have ping a lawyer? And how much will it cost me?

You can most definitely do it yourself. You fill the form 1040NR, and then attach it to the form 1040X, and write down the explanation in the appropriate place. However, I'd suggest going back to that agent and asking him to do that, properly. He should do it for free, since it is his omission.

You most definitely do not need a lawyer. If that agent that helped you before is unwilling, you can hire a different licensed tax adviser (EA/CPA licensed in your State) or another reputable tax preparer (look for references, for either) and ask them help you. You can then sue the original agent for your costs in a small-claims court. His E&O insurance will settle with you.

You don't need to wait for IRS to send notices (in fact, it is advised not to wait for the IRS to discover your mistakes if you can correct them earlier). Make sure you send the amended return in a certified mail envelope. If you're expecting a refund from the 1040 return, but the amounts on 1040NR differ - assume you've received the refund already, and calculate the difference you need to pay back, and write a check.