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My F1 visa started in Aug 2009, so 5 years ended in 2013 inclusive. 2014 counting 183 days, I would be considered a resident, but my employers exempt me from FICA on the pretext that I was on F1 visa, but did not consider that I would be treated as a resident on my OPT period for 2014.

I am an Indian citizen which also allows me deductions and dependents as a non-resident under Indo-US tax treaty. I have a dependent on F1 visa, and want to claim the AOP education credit.

Is that ok? Not paying FICA taxes and then using turbo-tax software to file as resident? If not, would it be better to pay back FICA taxes and file as resident?

Thank You and please help with what to do.

  • I am in the similar situation as yours, and would like to know the outcome of your filing as a resident. What happened to your unpaid FICA tax? – RRC Apr 12 '18 at 18:46
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For starters, you could have pointed out to the company that the exemption they are talking about is only for nonresidents, and that F1 resident aliens are not exempt from FICA.

But ultimately, the responsibility for deducting FICA taxes, and liability for not paying them, lies with the employer. If the government comes after anyone for the taxes, it will be the company, not you, and then the company may separately make arrangements for you to pay them back. Publication 15 says:

Collecting underwithheld taxes from employees. If you [the company] withheld no income, social security, or Medicare taxes or less than the correct amount from an employee's wages, you can make it up from later pay to that employee. But you are the one who owes the underpayment. Reimbursement is a matter for settlement between you and the employee.

In fact, I know of no mechanism for you to "pay FICA tax" on company wages on your own even if you wanted to.

  • Thank You @user102008. I didn't know at the time, and even now wasn't completely sure. So you are saying I would lawfully be able to file resident taxes? Could you also please confirm if I can show a dependent who is a sibling and on F1 visa as well? Do you think the IRS would investigate if they see no FICA on W2? Thanks for your answer. – tzharg Apr 8 '15 at 19:44
  • @tshar1000: You must file as resident, as you meet the Substantial Presence Test. IRS could investigate, but again it would not be your problem. Only residents can be your dependents. – user102008 Apr 8 '15 at 21:14
  • Thank You! That helped and will file as resident. However, I cannot claim dependent as the dependent is non-resident alien. However, I spent a considerable amount in their support, also paying their tuition bills. My standard deduction is quite less and was wondering if there any ways to increase refund based on what I spent on my sibling's support. If you know of any way it would be great to know. Thanks again. – tzharg Apr 11 '15 at 18:59

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