Non Resident Alien Tax Guide #3

Posted: February 4th, 2011 | Author: admin | Filed under: TAX GUIDE for Aliens | Tags: 1040nr, Non resident alien, physical presence test, Pub 519, substantial presence, tax guide, tax guide 3, us tax, us tax guide, US territorial waters | No Comments »

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Nonresident Alien or Resident Alien?

Introduction

You should first determine whether, for income tax purposes, you are a nonresident alien or a resident alien. Figure 1-A will help you make this determination.

If you are both a nonresident and resident in the same year, you have a dual status. Dual status is explained later. Also explained later are a choice to treat your nonresident spouse as a resident and some other special situations.

Topics

· How to determine if you are a nonresident, resident, or dual-status alien, and

· How to treat a nonresident spouse as a resident alien.

Useful Items

You may want to see:

Form (and Instructions)

o 1040 U.S. Individual Income Tax Return

o 1040A U.S. Individual Income Tax Return

o 1040NR U.S. Nonresident Alien Income Tax Return

o 8833 Treaty-Based Return Position Disclosure Under Section 6114 or 7701

o 8840 Closer Connection Exception Statement for Aliens

o 8843 Statement for Exempt Individuals and Individuals With a Medical Condition

See chapter 12 for information about getting these forms.

Nonresident Aliens

If you are an alien (not a U.S. citizen), you are considered a nonresident alien unless you meet one of the two tests described next under Resident Aliens.

Green Card Test

You are a resident for tax purposes if you are a lawful permanent resident of the United States at any time during calendar year 2009. (However, see Dual-Status Aliens, later.) This is known as the “green card” test. You are a lawful permanent resident of the United States at any time if you have been given the privilege, according to the immigration laws, of residing permanently in the United States as an immigrant. You generally have this status if the U.S. Citizenship and Immigration Services (USCIS) (or its predecessor organization) has issued you an alien registration card, also known as a “green card.”  You continue to have resident status under this test unless the status is taken away from you or is administratively or judicially determined to have been abandoned.

Resident status taken away. Resident status is considered to have been taken away from you if the U.S. government issues you a final administrative or judicial order of exclusion or deportation. A final judicial order is an order that you may no longer appeal to a higher court of competent jurisdiction.

Resident status abandoned. An administrative or judicial determination of abandonment of resident status may be initiated by you, the USCIS, or a U.S. consular officer.

If you initiate the determination, your resident status is considered to be abandoned when you file either of the following with the USCIS or U.S. consular officer.

• Your application for abandonment.
• Your Alien Registration Receipt Card attached to a letter stating your intent to abandon your resident status.

You must file the letter by certified mail, return receipt requested. You must keep a copy of the letter and proof that it was mailed and received.

If the USCIS or U.S. consular officer initiates this determination, your resident status will be considered to be abandoned when the final administrative order of abandonment is issued. If you are granted an appeal to a federal court of competent jurisdiction, a final judicial order is required.

Under U.S. immigration law, a lawful permanent resident who is required to file a tax return as a resident and fails to do so may be regarded as having abandoned status and may lose permanent resident status.

A long-term resident who ceases to be a lawful permanent resident may be subject to special reporting requirements and tax provisions. See Expatriation Tax in chapter 4.

Termination of residency after June 3, 2004, and before June 17, 2008. If you terminated your residency after June 3, 2004, and before June 17, 2008, you will still be considered a U.S. resident for tax purposes until you notify the Secretary of Homeland Security and file Form 8854, Expatriation Information Statement.

Termination of residency after June 16, 2008. For information on your residency termination date, see Former long-term resident under Expatriation After June 16, 2008, in chapter 4.

Disclaimer: This is our Interpretation of the IRS publication 519

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