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jaycali

Tax concern! URGENT

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Hi fellow VJers,

I'm the beneficiary of my wife's I-130 petition. She filed in the beginning of February.

I have a serious concern. I was on OPT for the better part of 2010, and the first 6 weeks of 2011. I filed my 2010 taxes on my own for the first time, and chose to use TurboTax. I did not know what a 1040 was, much less a 1040NR, but was directed to 1040 on the TurboTax site as I was an individual filing. I cannot recall the website ever asking me if I was a non-resident alien, I certainly didn't claim to be a resident alien. But i ended up filling out a 1040 regardless, and it was accepted by the IRS.

Non-resident aliens are supposed to fill out a 1040NR. I discovered this just this week as I was about to file my 2011 taxes.

To my horror, looking over my previous tax return for comparison, I discovered that I received a $400 tax credit to which non-resident aliens are not entitled. The questionnaire must have assumed I was a resident alien, and added the tax credit.

I'm obviously assuming it's illegal to receive a tax credit that you're not entitled to. But I know it's possible to amend your taxes. What does this entail in the US actually? Will it give me the opportunity to file a 1040NR instead, dismiss the 1040, and pay back whatever I owe the IRS for receiving the tax credit?

I'm freaking out here, and I really don't want any fraud allegations on me for filing the wrong tax form.

On a side note - I looked over my return that I signed electronically. It doesn't say anywhere that "I claim to be a resident alien or citizen" but it does say in small print by the tax credit that "you are not eligible if you are claimed as someone's dependent, or if you are a non-resident alien.

Edited by jhsm85

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I don't think there's any reason to freak out. Mistakes happen, and I doubt the IRS would pursue any kind of charges if you identified the mistake and are rectifying it. You might have to pay interest and penalties on the money you received, but that's all the trouble you'll be in so long as you pay it back. I accidentally got a larger refund than I was supposed to a couple years ago (received a credit I wasn't supposed to since my parent still claimed me as a dependent). The IRS caught the mistake, and I just had to pay back the credit + interest. Don't worry about fraud or criminal charges for an honest mistake!

Not sure how to go about amending, but here's a starting place:

http://www.irs.gov/newsroom/article/0,,id=108657,00.html

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I don't think there's any reason to freak out. Mistakes happen, and I doubt the IRS would pursue any kind of charges if you identified the mistake and are rectifying it. You might have to pay interest and penalties on the money you received, but that's all the trouble you'll be in so long as you pay it back. I accidentally got a larger refund than I was supposed to a couple years ago (received a credit I wasn't supposed to since my parent still claimed me as a dependent). The IRS caught the mistake, and I just had to pay back the credit + interest. Don't worry about fraud or criminal charges for an honest mistake!

Not sure how to go about amending, but here's a starting place:

http://www.irs.gov/n...=108657,00.html

Mistakes do happen but if the IRS has on the OPs tax papers that he is a US citizen ( even if it was an accident ) - DHS and USCIS are going to have serious issue with that.


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Your I-129f was approved in 5 days from your NOA1 date.

Your interview took 67 days from your I-129F NOA1 date.

AOS was approved in 2 months and 8 days without interview.

ROC was approved in 3 months and 2 days without interview.

I am a Citizen of the United States of America. 04/16/13

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Mistakes do happen but if the IRS has on the OPs tax papers that he is a US citizen ( even if it was an accident ) - DHS and USCIS are going to have serious issue with that.

Maybe...though that would require the IRS alerting DHS and USCIS, and why would they do that if he is the one to bring to their attention that he filed the wrong form and is refiling with the correct form? That hardly seems like he is trying to pose as an American citizen.

Plus you don't have to be a citizen to file a 1040. So at worst he was posing as a permanent resident for tax purposes?

Also, this: http://en.wikipedia.org/wiki/Cheek_v._United_States

The Court held that an actual good-faith belief that one is not violating the tax law, based on a misunderstanding caused by the complexity of the tax law, negates willfulness, even if that belief is irrational or unreasonable.

Edited by alizon

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Mistakes do happen but if the IRS has on the OPs tax papers that he is a US citizen ( even if it was an accident ) - DHS and USCIS are going to have serious issue with that.

Yea, that was my big initial fear. I know exactly how serious it is to falsely claim to be a USC. But I have read the tax refund paper three times over, and the only reference to immigration status is a small print saying "nonresident aliens are ineligible for the 'make work pay' tax credit." I missed that line since the tax refund paper was generically filled out by TurboTax and consisted of a rather large, undecipherable (to me) conglomeration of numbers and letters.

My theory is since I filed the 1040 instead of 1040NR, the TurboTax questionnaire automatically assumed I was either a US citizen, national or a non-resident alien. If that was the case, I would have been eligible for the given tax credit.

I haven't checked off anything, and certainly not signed anything saying I was an LPR, much less a citizen.

Maybe...though that would require the IRS alerting DHS and USCIS I would assume the USCIS checks for these things when my SSN is on the petition?, and why would they do that if he is the one to bring to their attention that he filed the wrong form and is refiling with the correct form? That hardly seems like he is trying to pose as an American citizen.Plus you don't have to be a citizen to file a 1040. So at worst he was posing as a permanent resident for tax purposes?

I've been frantically looking for anything that may have suggested that I inadvertently claimed US citizenship, but all I can find would be indirectly claiming it by filing the 1040. The 1040 doesn't seem to differentiate between US citizens, LPRs and US nationals. I suppose in a worst case scenario they might wonder if I claimed resident status for tax purposes..

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I've been frantically looking for anything that may have suggested that I inadvertently claimed US citizenship, but all I can find would be indirectly claiming it by filing the 1040. The 1040 doesn't seem to differentiate between US citizens, LPRs and US nationals. I suppose in a worst case scenario they might wonder if I claimed resident status for tax purposes..

In any case, you have to correct the error and pay back that credit; I just don't think you should panic over it. Maybe try calling their helpline and see what they say? http://www.irs.gov/help/article/0,,id=96730,00.html

Personally, I'd be shocked if they wasted their time pursuing fraud charges with someone who made a $400 mistake, caught it themselves, and brought it to the IRS's attention along with repaying the accidentally received credit. They have so many other dishonest people to deal with. And maybe USCIS checks your tax records when doing your background check, but 1. it'll be fixed by the time they get to processing your I-130, and 2. American bureaucracies are famously disconnected from one another. But let us know what happens!

Edited by alizon

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