# 1040NR and tax treaty



## Yossarian1 (Mar 9, 2015)

Hi everyone,

I have been living in US for several years, always passing the substantial presence test.
For that reason I filed a 1040 standard. After discussing with different CPAs about my tax status (for other matters related to FBARs, etc), we noticed that on the IRS 519 document it says:
"Effect of Tax Treaties
If you are treated 
as a resident of a foreign country under a tax 
treaty, you are treated as a nonresident alien in 
figuring your U.S. income tax."

I work in US but with a non resident visa, and the rules in the tax treaty would clearly define me as a resident of my country of origin (Italy).

So, did any of you file a 1040NR despite passing the Substantial presence test, using form 8833 to claim the tax treaty exemption?

If that's the case, did you file a FBAR? We know that it's not necessary to file FBAR if you file a 140NR, but one CPA told me that it may be necessary in case you file it using a tax treaty exemption 
(in this link w w w .bna.com/treaty-tiebreaker-alien-n17179890419/ i have found a blog post on the subject)

thanks in advance for the answers


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## newthilde (Jun 23, 2015)

Yossarian1 said:


> Hi everyone,
> 
> I have been living in US for several years, always passing the substantial presence test.
> For that reason I filed a 1040 standard. After discussing with different CPAs about my tax status (for other matters related to FBARs, etc), we noticed that on the IRS 519 document it says:
> ...


Hello! I do not have personal experience with this but just did a little bit of research on the IRS website. It does sound like what you state is correct. You can file a 1040NR but you will still need to file the FBAR. According to Code Section 7701(b) and related regulations the Residency rules do not affect the FBAR requirements.


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