''nonresident'' on a Federal, state or local tax return?

[tellhari]

Hello All,

I am now in the process of collecting the information to fill the form N-400 Application for Naturalization. Have a quick question about a question int the form.

Part 10 --> Section C --> Question 13

13. Have you ever called yourself a ''nonresident'' on a Federal, state or local tax return?

I did travel consulting for some time, During that time, I had to pay taxes for both resident state and work state. For work state, I had to claim as a Non-Resident in my tax returns. Should I say YES to above question. I think their intention of askign this question was different, but don't want to guess anything and take risk. Any help is greately appreciated. Thanks in advance.

..Hari Potti

 

[compaqdb]

Interesting finding. In your case, just answer No if you filed Federal tax and tax of your state of residence as RESIDENT. They don't care about your working state.

 

[lazycis]

I would answer "Yes" and explain the situation during the interview. Tax records are easily verified. No need to risk the denial by answering "No".

 

[Huracan]

I think this bureaucrats just go too far. I think the important one would be federal, but I guess they are out in a fishing expedition to see if one has cheated on any taxes. I don't know the right answer, but I would think there are two interpretations and choices:

1. As long as you filed your taxes properly and paid federal, state and local taxes according to the rules of IRS you should be fine and answer No.
2. If you are unsure about having had to pay some local taxes, or state taxes you may answer yes, and then go with a ton of tax documents to the interview and explain that you did consulting work and all.

It is usually better to answer yes and then show your innocence with documents than to answer no and get caught and make it look like you were trying to lie. Anyway, this is an unclear case. I am not an accountant.

 

[sh1996]

You should answer "no". The question is about whether or not you ever filed as a non-resident of the UNITED STATES, not whether you filed as a non-resident of New York because you lived in New Jersey, for example. State residency is irrelevant for US citizenship purposes.

 

[njman08]

You should answer "no". The question is about whether or not you ever filed as a non-resident of the UNITED STATES, not whether you filed as a non-resident of New York because you lived in New Jersey, for example. State residency is irrelevant for US citizenship purposes.

I agree. You can say 'No' to the question if you have filed all your taxes as reisdent of the US. Filing state taxes as non-resident of that state is not relevant to naturalization.
Wish they had made the question clear enough.

 

[Unknown111]

I agree. You can say 'No' to the question if you have filed all your taxes as reisdent of the US. Filing state taxes as non-resident of that state is not relevant to naturalization.
Wish they had made the question clear enough.

If the OP ever filed 1040NR form for tax return after being granted GC, then the OP should answer YES, otherwise NO should be checked.

 

[lazycis]

If the OP ever filed 1040NR form for tax return after being granted GC, then the OP should answer YES, otherwise NO should be checked.

1040NR applies only to federal return whereby the question specifically mentions also "state and local". To be truthful, OP has to answer "yes". What would OP gain by saying "no"? Tax transcripts are a must for the interview anyway.

 

[rick92]

I agree, if he can provide the documents, why shouldn't he disclose it and get it over with ???

 

[RSRK]

I have been an LPR since( last 10 years) 1998 and been on re-entry permit twice in the early years and now filed N400 in Sep08 based on 4 yr oneday rule. Since the time as an LPR and whenever I was in USA, I filed my taxes even though the amount was meager but to maintain my GC, I wanted to be safe. Later I got a standard letter from IRS saying that if I have earned under such and such amount I need not file returns for 2002 and again received the same letter in 2003. In 2003 and major part of 2004, I was in India on re-entry permit and hence had no US income. I worked in 2006 in USA for about 3 months and later in 2007 I worked almost for the whole year and for 6 months in 2008. The only year when I had substantial income when I owed taxes was in 2007 so I have filed and paid my taxes in 2007. For 2003, 2004, 2005, 2006, I did not file the return because of no/ less income, so I have requested and received from IRS “verification of non filing of returns” for these years and “transcript” for 2007, using form 4506T .Will also file and request for 2008 transcript later in 2009 before interview if required. One more thing, I have filed my returns mostly as self employed.

My question is regarding the tax returns for earlier years 1998, 1999, 2000, 2001 and 2002 for which I have copies. However for 2001 and 2002, I was a resident of NJ and worked in NewYork hence filed the state taxes as a nonresident/ part-time resident. Can anybody suggest if I need to get transcripts or some statement from IRS verifying my filing for these years too? Also what is form 1722 and how it is different than 4506T? Although in many cases they consider only last 5 years, I am taking into account all my years as LPR. As suggested in these forums, my idea is to show evidences of ties to US when not present here (I was out of USA on re-entry permits). Apart from tax returns which are not really substantial in my case, I have bank statements for all these years and now also have medical insurance bills. I have a huge family here including my children and we are all well connected and have get-togethers so that can show the emotional ties. I have also filed petition for my adult son who is already here on H1 visa. I hope that all this will show some indirect ties. Any inputs on this?
Also I have answered "No" in Part 10, question 13. Can anything be explained about it later at interview?

 

[calvillager]

Any inputs on this?
Also I have answered "No" in Part 10, question 13. Can anything be explained about it later at interview?

I would answer NO to question Q13. The specification of "non-resident" in Q13 in my view refers to the nonresident of the United States, not the non-resident of state and local of your residence. (There are more than 25 definitions of "resident." Choose and think carefully when answering or asking.)

CIS sets up this question to determine if you've ever used the nonresident status to benefit from the tax exemptions given specifically and only to non-residents of the United States (check with your tax adviser for details). USCIS sees the non-resident claim as a fact of voluntarily giving up the permanent resident status, which consequentially would disqualify the applicant from applying citizenship. Even worse, CIS would send the applicant an NTA because the applicant have become an illegal resident since the day the applicant claimed nonresident status for that tax benefit.

If you live in NY and worked temporary in CA. By laws, you have to claim yourself a nonresident on the California state tax return. But I don't think this is the type of "non-resident" Q13 is aiming for. Also, the IO should understand that you have to claim non-resident status on the California state tax return.

 

[RareGold]

I am debating on this issue as well.

I have 3 years federal tax transcripts, as FL residents. In 2006 we filled non resident SC state tax , jointly as well.

1. I can answer YES to question 13 and add an explanation sheet along with SC non resident state tax transcript.

2. I can answer NO, not sending explanation sheet, but still taking to the interview state non resident tax return.

3. Should I call Customer Service?

Obviously I want to take the best option for my case. Which one is that?

Thanks for your thoughts.

RareGold

 

[RSRK]

I would answer NO to question Q13. The specification of "non-resident" in Q13 in my view refers to the nonresident of the United States, not the non-resident of state and local of your residence. (There are more than 25 definitions of "resident." Choose and think carefully when answering or asking.)

CIS sets up this question to determine if you've ever used the nonresident status to benefit from the tax exemptions given specifically and only to non-residents of the United States (check with your tax adviser for details). USCIS sees the non-resident claim as a fact of voluntarily giving up the permanent resident status, which consequentially would disqualify the applicant from applying citizenship. Even worse, CIS would send the applicant an NTA because the applicant have become an illegal resident since the day the applicant claimed nonresident status for that tax benefit.

If you live in NY and worked temporary in CA. By laws, you have to claim yourself a nonresident on the California state tax return. But I don't think this is the type of "non-resident" Q13 is aiming for. Also, the IO should understand that you have to claim non-resident status on the California state tax return.

I too hope so. My question regarding the tax returns for earlier years 1998, 1999, 2000, 2001 and 2002- Should I go ahead and request for transcripts for these years too?

 

[Jackolantern]

3. Should I call Customer Service?

They are useless. Call 3 times, you get 4 different answers.

I think the safest thing is to say NO, but on your attached sheet write something like this: "Question 13: I filed as a nonresident of state X because I was a resident of state Y."

That avoids the automatic alarm that gets raised if you answer YES, while providing truthful related information in writing so they can't say "You lied on the application."

 

[RareGold]

They are useless. Call 3 times, you get 4 different answers.

I think the safest thing is to say NO, but on your attached sheet write something like this: "Question 13: I filed as a nonresident of state X because I was a resident of state Y."

That avoids the automatic alarm that gets raised if you answer YES, while providing truthful related information in writing so they can't say "You lied on the application."

Dear Jackolantern,

They asking for explanation sheet if I answer YES
If I go with NO and with attached sheet, do they read it at all?

Thanks for your input.
RareGold

 

[Jackolantern]

They asking for explanation sheet if I answer YES

Explanation is required if you answer YES, but there is nothing that says you cannot add an explanation if you answer NO. In some cases it is important to attach an explanation for a NO answer. For example, suppose you have no tax returns at all due to lack of income, so you answered NO when asked about if you failed to file a required return. But you realize they will raise an eyebrow because you provided no tax returns, so to avoid problems you can attach an explanation saying that you were not required to file due to your income always being less than $X.

If I go with NO and with attached sheet, do they read it at all?

If they don't read it, that's not your problem. If you provided the information in writing, they can't come back later and deny or revoke your citizenship for failing to disclose it.

 

[Bobsmyth]

IMO, question 13 on the N-400 is not worded according to the intent of 8 CFR 316.5(c)(2) which states:

(2) Claim of nonresident alien status for income tax purposes after lawful admission as a permanent resident. An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States.

http://law.justia.com/us/cfr/title08/8-1.0.1.3.68.0.1.5.html


Regarding claiming non resident status, 8 CFR 316.5(c)(2) makes reference to "income tax", but the N-400 further defines this as federal, state or local income tax. This being said, I don't see how answering YES to filing a state or local return as a non-resident alone can raise a presumption of loss of LPR privileges.

Furthermore, the adjudicator's field does not further define taxes at a state and local level.

An affirmative answer to the questions of owing Federal taxes or claiming nonresident alien status, or failure to file a current return, requires that you obtain full details, preferably at the time of examination. An applicant’s nonresident alien status could indicate that he or she has abandoned his or her LPR status and is not eligible under INA 318. It could also affect the applicant’s eligibility under INA 316 because of the residence and physical presence requirements. An applicant's negative answer to having claimed nonresident alien status shall not be accepted as satisfactory resolution where the circumstances suggest the possibility that the applicant may have, in fact, claimed such status. Where it is indicated that the applicant, whether before or during the statutory period, has been employed abroad or had business, financial, or other interest aboard from which he/she derived income, the possibility is always present that he/she may have claimed nonresident alien status for income tax purpose s, as well as may have abandoned LPR status, and may thereby have terminated his/her status as a lawful permanent resident under the immigration laws.


​

http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=df594f04338d267e95ceef2cbaf212f4


What that means it that even if you answer NO, it will not suffice as an acceptable answer if your address and work history show otherwise. Therefore, if you choose to answer YES, circle "state", write "see explanation" and attach a letter of explanation which you will be able to bring up at interview.
If you choose to answer NO, just bring the letter of explanation at interview.
Either way, the outcome has the same effect; that claiming non resident on state income tax alone does not raise a presumption of abandonment of LPR status.
Finally, one can argue that answering NO with no further explanation or disclosure at interview when your work and address history shows otherwise does lead to the possibility that you are not being totally honest and the IO may choose to use this as a point in determining moral character. In the end the choice is yours.

 

[Jackolantern]

The question should be reworded to ask whether you have claimed to be a nonresident alien, instead of just "nonresident".

 

[Bobsmyth]

The question should be reworded to ask whether you have claimed to be a nonresident alien, instead of just "nonresident".

Or more precisely:

Have you ever claimed to be a non resident alien on a federal income tax return.

Since state and local returns do no use the term "non resident alien" on their forms. Only the federal 1040NR uses that terminology.

 

[calvillager]

I am a nonresident of my neighbor's house

USCIS is a federal agency and has only the authority to examine any matters connected to the laws in the federal level. It can not step over their authority (that's illegal!!!). For example, USCIS has no authority to question my claiming myself a nonresident of my neighbor's house.

If you've ever claimed yourself a nonresident on 1040 or to exempt from income taxes given exclusively to a non US resident, then you need to say Yes on Q13. This is becasue CIS is a federal agency and such taxes are a federal tax and only a non US resident can benefit from.

If your local tax codes allow only non US residents to exempt from certain tax liabilities and you claim yourself a non resident in this matter, then you have to answer Yes to Q13.

If the local tax codes define nonresident as any one living/working temporary in the State/City, then this is not the "nonresident" CIS is after, because CIS (a federal agency) has no authority over the local matters, as like CIS can not go after me when I claim myself a nonresident of my neighbor's house.