안녕하세요. 

얼마전에 J1 visiting 이후 J1 Postdoc 세금 filing 신고 관련 문의 했었습니다. (F1 아내)

소리네 님의 도움을 많이 받아 현재까지 준비한 상황도 공유하고(혹시나 앞으로 같은 케이스에 처하실 분들을 위하여), 또 조언도 받고자 준비한 사항들을 정리해 보았습니다.

제출 서류들 : 1040 (married joint, line 21에 면제 받는 금액을 합산해서 표시), 8833(각자 것), W2 (각자 것), 한국에서 박사 수료증(한국 레지던트 증빙용. 도움이 되나 모르겠으나…) 

그리고 아래는 소리네 님의 조언을 기초로 하여 8833을 작성해 본 것입니다.

1. 8833 제것

I am a citizen of South
Korea.  I have been a Ph.D student in Korea
until 2012 and have received the Ph.D. degree on 02/–/2012. (Degree
certificate attached) During my Ph.D. studies, I had 2 visits to US as ‘J-1
Short-term scholar’ for the following periods.(–/–/2010 ~ –/–/2011 and –/–/2011
~ –/–/2011). During this period I have been a resident of Korea and a
non-resident alien of US. Also, I had no income in US and didn’t claim the
benefits of US-Korea Tax Treaty Article 20.

I have entered U.S. as a full-time
‘J-1 Research Scholar’ on –/–/2012 as a post-doctoral fellow (new contract,
not expected to exceed 2 years). The US-Korea Tax Treaty Article 20 allows
exemption of income for a period not exceeding 2 years from arrival. Since I
was a resident of Korea on –/–/2012, it could be considered as my date of
arrival. Therefore, my treaty benefits of Article 20 run from –/–/2012 to
—/–/2014.

In 2012, I have met the
substantial presence test and am considered a resident alien for tax purposes. However,
this treaty has an “exception to the savings clause (Article 4(5-b))”
which allows treaty benefits even if the tax payer is eligible to file as a
resident alien for tax purposes and the treaty eligibility period has not expired.

Therefore I am claiming exemption
of $

---

(wages) under the US-Korea Tax Treaty Article 20 as a nontaxable
amount. (See the exempted gross income of 1040, line 21)

2. 아내 것

I am a citizen of South Korea. I
entered USA on –/–/2010 on an F-1 visa (student) and have maintained F-1
status continuously since then. The US-Korea Tax Treaty Article 21 allows an
annual $2,000 exclusion of student wages from gross income for a period not
exceeding 5 years of from arrival. Therefore, my treaty benefits run from –/–/2010
to –/–/2015.

Since my spouse is a resident
alien of US for tax year 2012, I elect to be considered as a resident alien for
tax purposes. However, this treaty has an “exception to the savings clause
(Article 4(5-b))” which allows treaty benefits even if the tax payer is
eligible to file as a resident alien for tax purposes and the treaty
eligibility period has not expired.

Therefore I am claiming exemption
of $2000.0 (wages) under the US-Korea Tax Treaty Article 21 as a nontaxable
amount. (See the exempted gross income of 1040, line 21)

However I may still be treated as
a non-resident alien for the purpose of withholding Social Security and
Medicare tax.(Refer to ‘Aliens Employed in the US – Social Security Taxes’) Therefore,
I do not have to re-pay the FICA taxes that were not withheld from my salary.  

위와 같이 작성하였는데,

1. 혹시 수정해야 할 부분은 없을까요?

2. 다른 제출해야되는 서류들은 없을까요? ..statement 같은 것들 첨부해야하는지

3. f8833 에서 2번 항목을 보면 overriding하는 법이 뭐냐에 모든 소스들이 IRC 61:871(b) 를 들고 있는데, 이 조항을 찾아보면 non-resident alien의 경우에 대한 내용인 것 같은데 이 조항이 맞는지요?

또 다시 장문의 글이 되었습니다. 항상 도움 주셔서 감사합니다!

좋은 주말 되세요

3번의 질문은 아래의 Link에서 Copy한 예를 잘 읽어 보십시요

871(b)라는 부분을 잘 읽어보십시요.

http://www.law.cornell.edu/cfr/text/26/301.7701(b)-7

Example 3.

C, a married alien individual with three children, is a resident of foreign country Y, under Y’s internal law. Country Y is a party to an income tax convention with the United States. C is also a resident of the United States under the Internal Revenue Code. C is considered to be a resident of country Y under the convention. The convention specifically covers, among other items of income, personal services income, dividends and interest. C is sent by her country Y employer to work in the United States from January 1, 1985 until December 31, 1985. During 1985, C also earns United States source dividends and interest and incurs mortgage interest expenses on her personal residence. The United States-Y treaty provides that remuneration for personal services performed in the United States by a country Y resident is exempt from United States tax if, among other things, the individual performing such services is present in the United States for a period that is not in excess of 183 days. The treaty provides that the rate of United States tax on United States source dividends paid to residents of Y shall not exceed 15 percent of the gross amount of the dividends and it exempts residents of Y from United States tax on United States source interest. In filing her 1985 tax return, C may choose to file either as a resident alien without claiming any treaty benefits or as a nonresident alien if she desires to claim any treaty benefit. C files as a nonresident (i.e. by following the procedure described in § 301.7701(b)-7(b)). Because C does not satisfy the requirements of the United States-Y treaty with regard to exempting personal services income from United States tax, C will be taxed on her personal services income at graduated rates under section 1 of the Code pursuant to section 871(b) of the Code. She will not be entitled to deduct her mortgage interest expenses or to claim more than one personal exemption because she is taxed as a nonresident alien under the Code by virtue of her decision to claim treaty benefits, and section 873 of the Code denies nonresidents the deduction for personal residence mortgage interest expense and generally limits them to only one personal exemption. C will be subject to a tax of 15 percent of the gross amount of her dividend income under section 871(a) of the Code as modified by the treaty, and she will be exempt from tax on her interest income. C is not entitled to file a joint return with her spouse even if he is a resident alien under the Code for 1985.