N-400 Naturalization “nonresident “ questions: AZ

T

tina2005

Registered Users (C)
Dear ALL-

I will file my N-400 very soon based on “I have been a Lawful Permanent Resident of the United States for at least 5 years.” I have no difficulty to fill all other questions in N-400, expect for the following one:

C. Continuous Residence
Since becoming a Lawful Permanent Resident of the United States:
13. Have you EVER called yourself a ''nonresident'' on a Federal, state, or local tax return?

I checked my tax returns for the last five years and found that I unfortunately filed my state tax return by using 140NR(nonresident) for 2003, 2002, and 2001. I did file my state tax return using 140(resident) for 2004. In the last five years, I filled all my federal tax return using 1040.

Therefore, I think I am OK for my federal tax return. What should I do for my three nonresident state tax returns? Your advices will be highly appreciated!

To help you judge my problems, let me provide you with reason that made me file 140NR(nonresident) for the state tax returns. When I filed these 140NR’s, I didn’t think I would stay in AZ Permanently and in fact when I was a student in one university in AZ, I was treated as a foreign student and had to pay higher tuition than students from AZ. This made me feel comfortable to file 140NR. Since my yearly income had been 0 for many years, it made no difference to file either 140NR for nonresident or 140 for resident state tax returns.

Should I send the AZ state IRS a new set of tax return forms to correct my errors, OR
Should I show the USCIS interviewer my 140NR(nonresident) returns?

If I answer “YES” to “13. Have you EVER called yourself a ''nonresident'' on a Federal, state, or local tax return?”, what kind of trouble I shall have?

Please help me, I already lost sleep for two night over these issues! Thank you so much in advance!

Sincerely yours,

Tina
 
I find the law: nonresident alien status for tax purpose

I find the law at
http://uscis.gov/lpBin/lpext.dll/in...2/slb-56985?f=templates&fn=document-frame.htm

Interpretation 318.4 Effect of claim of for income tax purposes upon prior lawful admission for permanent residence.

Under the Internal Revenue laws and regulations, aliens are classified for income tax purposes as "resident aliens" or as "nonresident aliens." Resident aliens are, in general, taxed the same as United States citizens. Nonresident aliens, on the other hand, are granted special benefits under the income tax laws and are exempt from liability for income taxes on earnings which are derived from sources outside the United States. 39/ An alien who performs personal services outside the United States is considered as having received income from sources outside the United States even though he is paid for those services by an employer located in the United States.

An alien who has been admitted to the United States as an immigrant may nevertheless be treated under the income tax laws as a nonresident alien for tax purposes, or the alien himself may choose to acquire the status of a nonresident for tax purposes. The consequence of the acquisition of nonresident alien status for tax purposes may be the termination of immigrant status under the immigration laws. Whether that result follows is dependent upon the manner in which the alien became a nonresident.

There are two categories of immigrants who are considered to be, or who acquire the status of, nonresident aliens under the income tax laws and regulations.

(1) An immigrant admitted to the United States for permanent residence, or an alien whose status is adjusted to that of a permanent resident but who has no bona fide intentions of establishing residence in the United States at the time he is accorded status as a lawful permanent resident, is automatically classified under the income tax laws and regulations as a nonresident alien. That classification attaches notwithstanding that the alien has not made application for or otherwise requested that he be so classified, that he has not abandoned his immigration status as a lawfully admitted permanent resident, and that he is still considered as an immigrant under the immigration laws.

(2) An immigrant admitted to the United States for permanent residence, or an alien whose status is adjusted to that of a permanent resident, who upon admission or adjustment intends to and does establish residence in the United States, is automatically classified under the income tax laws and regulations as a resident alien. Such an alien retains his resident alien status until such time as he voluntarily elects to claim nonresident alien status under the tax laws and regulations. Such an election can be made only by satisfaction of the following two conditions:

(a) The alien's actual departure from the United States,

(b) coupled with an intention to abandon residence in the United States, or the intention to abandon residence must be formed after the alien has departed from the United States.

Section 101(a)(20) defines the term "lawfully admitted for permanent residence" to mean "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." This definition does not condition the exercise of the privilege accorded thereunder within any prescribed period after admission, nor does it provide for loss of the alien's status as an immigrant upon failure to exercise the privilege. An immigrant in category (1) may, therefore, retain and continue to enjoy the status of an alien lawfully admitted for permanent residence, notwithstanding that he is regarded as a nonresident alien under the income tax laws, unless and until he changes his status as an immigrant under the immigration laws by abandonment of that status. If, of course, such an alien's absences are prolonged and frequent, with relatively little time spent in the United States, the purpose and circumstances of his absences may compel the conclusion, on other than income tax considerations, that the alien is not entitled to the status or the benefits under the immigration laws which accrue to lawful permanent residents. 40/

In contrast to the immigrant in category (1), the immigrant in category (2) is an alien who did, in fact, establish residence in the United States after admission to the United States for permanent residence, and thereafter made a voluntary election to claim nonresident alien status to enable him to qualify for special exemptions from income tax liability. In making such election, the alien acquired a status under the tax laws which is patently inconsistent with the continuance of status as a lawful permanent resident under the immigration laws, since eligibility for the status was available only to immigrants who had left the United States with intention to abandon residence. Abandonment of residence by an immigrant, for whatever reason or purpose, constitutes a change of status within the contemplation of section 101(a)(20) and extinguishes the status of a lawful permanent resident.

The fact that an alien within category (2) was granted the benefits of section 316(b) or of section 317, preserving continuity of residence in the United States for naturalization purposes, does not alter the conclusion that he no longer enjoys the status of a lawful permanent resident and, therefore, is ineligible for naturalization on that ground. Additionally, with the change of status, physical presence and residence already accumulated cannot be counted and new accumulations are not possible. 41/

Where an immigrant in category (2), who is applying for a privilege or benefit under the immigration or nationality laws, claims that he was unaware or ignorant of the fact that, in electing to claim nonresident alien status under the tax laws, he would simultaneously terminate his status as a lawful permanent resident under the immigration laws; that in so electing he had no intention of abandoning either his residence in the United States or his status as an immigrant; and substantiates his claims by proof that he has filed a correct Individual Income Tax Return, Form 1040, with the Internal Revenue Service for each year for which nonresident alien status was claimed, he is considered as having acted upon a mistake of fact and of law and, therefore, as not having terminated his status as a lawful permanent resident under the immigration laws through the prior claim to nonresident alien status for tax purposes.
 
Another law on this issue

Another relevant law at:

http://uscis.gov/lpbin/lpext.dll/in...3/slb-29458?f=templates&fn=document-frame.htm

(c) Disruption of continuity of residence

(1) Absence from the United States.

(i) For continuous periods of between six (6) months and one (1) year. Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under Sec. 316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws. The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence: (Amended 9/24/93; 58 FR 49913)
 
The above quotes address only federal tax issue, but not state or local tax, which is the original question. In fact, it is perfectly fine for permanent resident to file "nonresident" tax return for state and local taxes (there are circumstances when it is justified), as long as federal taxes filed as "resident".

Therefore, the answer to question 13 should be "yes", and explanation attached.
 
A similar case found

Dear All,

I searched the net and came across a similar post. However, his case was more complicated than mine because he filed 1040NR for federal tax return. I would like to make a thread concerning this issue available to all persons have the same problem. In the following post, the suggesting fix is:

“The fix may be as simple as filing an amended tax return…”

Should it work? And how can I file an amended tax return for my state tax returns if this method does work?

Please help if you have any ideas and comments! Thank you very much in advance!

Tina

++++++++++++++++THE FOLLOWING IS THE MY SEARCH RESULT++++
Question regarding N400 application and 1040 nonresident tax
RPO Jun 13 2003, 6:53 pm

Newsgroups: misc.immigration.usa, alt.visa.us
From: RPO <invalid....@invalid.domain> - Find messages by this author

Date: Fri, 13 Jun 2003 11:06:31 GMT
Local: Fri, Jun 13 2003 7:06 pm
Subject: Question regarding N400 application and 1040 nonresident tax

Hello,
I have a question regarding N400 application and nonresident tax
filing. I adjusted status to permanent resident back in Oct. 1998 via
family petition. Previous to the AOS, I was a full time F1 student,
and worked on campus part time. I'm eligible to submit my N400
application next month (5 years - 90 days), but I have some concerns
based on my tax filing.
In the N400 application, it asks, 'Since becoming a Lawful Permanent
Resident of the United States, 13. Have you EVER called yourself a
"nonresident" on a Federal, state or local tax return?'
For the 1998 tax year, I mistakenly filed using the nonresident 1040NR
form instead of 1040. I am worried that the INS will deny my
application based on this slipup, or worse consider me as having
abandoned permanent residency. This was the only year since obtaining
GC that I filed inadvertenty as a nonresident. Tax years 1999 - 2002
were all submitted on 1040s.
Any suggestions or advice would be greatly appreciated.
Thanks in advance,
Andy.



Ingo Pakleppa Jun 13 2003, 10:53 pm

Newsgroups: misc.immigration.usa, alt.visa.us
From: "Ingo Pakleppa" <s...@my.web.site> - Find messages by this author

Date: Fri, 13 Jun 2003 07:52:56 -0700
Local: Fri, Jun 13 2003 10:52 pm
Subject: Re: Question regarding N400 application and 1040 nonresident tax

Your concern is justified. You should consult with a good immigration
attorney. The fix may be as simple as filing an amended tax return for
1998.
 
Aibolit, thanks a lot!

Aibolit said:
The above quotes address only federal tax issue, but not state or local tax, which is the original question. In fact, it is perfectly fine for permanent resident to file "nonresident" tax return for state and local taxes (there are circumstances when it is justified), as long as federal taxes filed as "resident".

Therefore, the answer to question 13 should be "yes", and explanation attached.
Click to expand...

Thanks a lot for your kind help!
 
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