N-400 Advice on one of questions

[vandeluca]

Hi All~
Just saw a grey-ish quesiton for us. On the N-400 it asks if you ever failed to file a required Federal State or Local Tax return.

My spouse applied for GC in February 2009 and became a PR in August 2009. Therefore, his first tax return filed as a GC holder was the 2009 year. He had filed other tax returns in other years occassionally if needed/requried using an ITIN number for a non resident in the past years for real estate sales, etc but never as a GC holder.

However in looking back, we realized now that technically he would actually be liable to file (not owe) a tax return for the 2008 year due to Physical Presence and # of days in the US. This is because of the number of days he spent in the US in 2008 (NOT AS A GC holder) as they count that year and backwards for 3 as a proration.

For our 2011 Tax Return, I will be giving our accountant our information in the next 2 weeks to make the October EXTENSION allowed.

We would like to send in the N-400 now but have 2 questions:

1. Is it ok to send it in without the 2011 completed yet (we do have the extension so that is not late)? There is a question about "Since becoming a resident have you EVER failed to file a required Fed, State or Local Tax?" Can I state NO since we have the legal extension till October 2012?

2. We obviously will be also getting the 2008 return for him at the same time as the 2011. Is 'NO" still an apporpriate answer if he's ever failed since becomming a resident since he was not a resident in that tax year (I assume he will have to use his ITIN number for that year not soc security since not granted till 2009)?

The point is, we don't want to hold up turning in the N-400. While this is processing, all taxes will be in (2011 on time) and the filing of the 2008 before GC. However, just want to make sure all is ok in doing this. For the interview we would be carrying the 2009, 2010 and 2011 returns.


Another Question:

#2. For the Total of Days out of the US....do you count your overnight stays? For example, if you went on a trip August 24 and Returned August 26..does that mean that in essence you spent 2 nights therefore state it as "2 days" out of the US? OR Do you count it as "3 days" (24, 25, 26?)

THanks in advance...

[vandeluca]

Hi I am just bumping the above question up..if anyone has answers/suggestions...

We would like to send in the N-400 this week if possible....

THank you in advance.

[vandeluca]

Hi I am bumping up again.. Sorry..I would reaally appreciate feedback..perhaps no one knows...but....

Thanks. I will try not to bump this up again

[Jackolantern]

I would advise filing both the 2008 and 2011 returns before applying for citizenship, so the tax issues will be cleaned up from the beginning of the N-400 process, in order to reduce the chances of the interview going into a hostile line of questioning or post-interview processing getting bogged down with the tax issues (with the interviewer wanting more documents etc.).

Otherwise, if the 2008 return is still unfiled when he files the N-400, I don't know if that can be construed as failing to file "since becoming a permanent resident", because although the income was in 2008, it's still in unfiled status when he's a permanent resident. And if he still owes tax for 2008, he won't be able to answer NO to the question about having overdue taxes.

The ITIN vs. SSN is a tax question, not an immigration question. I hope he has a tax professional (not H&R Block!) helping to prepare the 2008 return, due to the possible penalties and complexities of filing it so late, and the possibility of dual-country tax liabilities in 2008 that may have to be deducted against each other using tax treaties and other rules.

[vandeluca]

Thanks...I guess I have to get a hurry on this. No, it is all cool I have a good accountant regarding all this. I basically don't have to think just check it (international expertise). I won't owe we already know that...because we crunched my numbers back then.

I think you are right about the 2008 question they could interpret. I am going to ask my attorney about that one upon filling out the form........I interpret the question 'since becomming' to mean from the date you got the GC...but who knows..I could get a know it all who wants to argue the point that day in the way you interpreted.....Thanks..

THanks..always looking for devils advocate I just have to move and get my tax stuff in-which was the plan anyway but since we have the legal extension, I did not see it as an issue... Guess the N400 will go in October not now. tx again