Visit to  nearest H& R Block. You do not have to pay a dime and you will know in the right answer then and there. You can walk out without filing but you will get the answer.

Syanjali · Mar 18, 2009 12:13 PM

Nepthug420, have you asked your boss yet?

rekha2064 · Mar 21, 2009 10:29 AM

Rekha2064: Your excerpts is very clear in itself to tell you that you can not claim her as a dependent. When pub 519 considers even students who are here for 2-4 years as a temporary person, how come you can assume that a perosn in B1/B2 who are here for just 3-12 months considered as a resident? Isn't it insane? Please don't pretend to be ignorant. You know it. It has proven in your writing and excerpts. You are in desperate attempt to save some bucks. Sorry to be harse on you but your whole attempt here justifies that you are just trying to impose your belief that you should be able to claim her as your dependent. Sorry, you can not do it legally. Please do not think Nepthug420 will give you any good news to quench your desperate thirst of saving money. This is the tax season. He definitely has better thing to do in life rather than to try to wake somebody up who is pretending to be asleep. Sorry to be harse on you again. Purush

purush · Mar 21, 2009 11:29 AM

Purush, It is just a discussion. You said as if you were the final authority. Even IRS decisions are challenged in the court and falsified but we are either simply students or practisioners. Many a time, one court's decision is reversed by another court. There are certain cases where even the CPA's who have practised for decades and PhD's can not respond for sure.  Rekha has valid point. We may have different points of view.  To me, it is OK to claim as dependent (and file W-7) provided we have enough evidence of support in black and white (like proof of living together, paying bills for her, etc.). Rekha already proved from her calculation that her niece is a resident-alien for tax purpose (B visa is different from F visa!). Can you please explicitly quote the statement that Rekha presented above is clear enough that prevets her from claiming her niece as a dependent?

simsim · Mar 21, 2009 1:30 PM

Simsim, I am sorry I am going to be harse on you too. I know you are more disoriented than Rekha, at least she has done research and looking at the right section of the code and publication. She is more certain (51%) that she can not claim her niece as dependent.  Read my comments on her excerpts in RED.   "I know she doesn’t qualify as a dependent child; question is whether she qualifies as dependent relative.  From my understanding, to claim as dependent relative, she must meet following criteria 1. The person is: a. A relative, or b. A full-time member of your household. 2. He or she is a citizen or resident of the U.S. or a resident of Canada or Mexico. SHE DOES NOT QUALIFY FOR THIS TEST. 3. He or she did not file a joint income tax return with anyone else. 4. You provided over half of his or her support. 5. The person in question has less than $3,500 of income for the entire year. - Now the real question is whether she in considered US resident for US tax purpose, IRS Pub 519 states -- You will be considered a U.S. resident for tax purposes if you meet the substantial presence test for calendar year 2007. To meet this test, you must be physically present in the United States on at least:   1. 31 days during 2007, and   2. 183 days during the 3-year period that includes 2007, 2006, and 2005, counting:   a. All the days you were present in 2007,and   b. 1/3of the days you were present in 2006, and   c. 1/6 of the days you were present in 2005.    - So it seems that she may be considered an US resident for tax purpose, but I am not clear whether substantial present test applies to a person in B1/B2. IT DOES NOT APPLY TO ANYBODY WHO IS IN TEMPORARY VISA. I WAS A STUDENT IN 2005 AND WAS PRESENT IN THE US FOR 365 DAYS BUT FOR TAX RESIDENCY TEST I WAS NOT PRESENT HERE A SINGLE DAY. WHY ? I WAS IN A TEMPORARY (EXEMPT) VISA FOR THE WHOLE YEAR. THIS SUBSTENTIAL PRESENCE TEST DOES NOT KICK IN UNLESS SOMEBODY IS IN PERMANENT VISA SUCH AS H1/GREEN CARD or others)   - IRS Pub 519 -- Exempt individual - Do not count days for which you are an exempt individual. The term “exempt individual” does not refer to someone exempt from U.S. tax, but to anyone in the following categories. 1. An individual temporarily present in the United States as a foreign government-related individual. 2. A teacher or trainee temporarily present in the United States under a “J” or “Q” visa, who substantially 3. complies with the requirements of the visa. 4. A student temporarily present in the United States under an “F,” “J,” “M,” or “Q” visa, who substantially complies with the requirements of the visa. A professional athlete temporarily in the United States to compete in a charitable sports event. - IRS Pub 519 doesn’t say anything about B1/B2, so I am not sure whether she is an exempt individual or not. - IRS Pub 519 also says -- Closer Connection to a Foreign Country - Even if you meet the substantial presence test, you can be treated as a nonresident alien if you: 1. Are present in the United States for less than 183 days during the year, 2. Maintain a tax home in a foreign country during the year, and (SHE MAINTAINS A TAX HOME IN NEPAL AS SHE IS JUST A VISITOR IN THE US. SHE DOES NOT INTEND TO WORK OR PAY TAX IN THE US, AT LEAST HER VISA STATUS SAYS.) 3. Have a closer connection during the year to one foreign country in which you have a tax home than to the United States (unless you have a closer connection to two foreign countries, discussed next). - So the conclusion, I’m confused and looking for some expert opinions. I KNOW THE TAX CODE IS NOT FAIR. FROM A FAIRNESS POINT OF VIEW I ALSO THINK SHE SHOULD BE ABLE TO CLAIM HER AS A DEPENDENT. BUT FROM TAX CODE POINT OF VIEW, SHE CAN NOT CLAIM HER AS DEPENDENT. LET ME SHARE MY OWN EXPERIENCE. BEING ALREADY IN THE US FOR THE LAST 3 YEARS IN 2006, I WAS NOT ABLE TO CLAIM MY WIFE AS MY DEPENDENT WHO WAS IN F2. I HAD TO PAY TAX AS A SINGLE PERSON WITHOUT ANY STANDARD DEDUCTION. WASN'T MY CASE MORE VALID THAN REKHA'S TO CLAIM MY WIFE AS MY DEPENDENT? THE TAX CODE IS NOT FAIR ESPECIALLY FOR THE PEOPLE IN F1/J1.  If she had a social security number, you could claim her as a dependent illegally and reduce tax liability because the chances of getting caught is very slim (less than 1%) for tax audit. However, I don't think IRS will issue an ITIN number for a person who is in B1/B2 visa. If you don't have an ITIN number or social security number, you can not claim anybody in your tax return. Anyway, I do not intend to offense both of you Simsim and Rekha.

purush · Mar 21, 2009 2:42 PM

I am hoping you got your answers, if not I have some. You need to have your niece ss number or ITIN number to be your dependent for 2008 tax filing.  You did not mention about her age, because she is under 19 or under 24 and full time student, living with you 6 month and over and support over 50%. Lack of SS number or ITIN number, she cannot be your dependent for 2008 tax filing purpose. Therefore you have to file yours as single or whatever filing status you do. Once you get your niece either ss number or the ITIN number, then you have to amend your 2008 tax filing. On this amend you claim you niece as your dependent and you will get the difference. Again, instead of bugling mind, I would have visited nearby Tax Preparer’s office and would have got right answer for peace of mind. As I said, you do not have to pay a dime. Everyone is in March Madness, they are napping lack of customers.      

Syanjali · Mar 21, 2009 3:25 PM

Thanks purush, simsim, syanjali for you comments.   Purush, as I mentioned earlier, IRS Pub519 specifically lists person in F visa as “exempt individual”, but doesn’t mention anything specific about B1/B2, that why I was asking. Anyway, thanks for your opinion.

rekha2064 · Mar 22, 2009 9:26 PM