Gary Carter, PhD, MT, CPA
The rule under Sec. 7701(b)(5) of the Code says that a J-1 visa holder is treated as an "exempt individual" (a nonresident) for two calendar years, only if the individual was not an exempt individual (a nonresident) for at least two of the previous six calendar years. So you are a resident in 2013 if you were treated as a nonresident F-1 student in 2007 and 2008. If the last year you were a nonresident F-1 was 2007, the university is correct. If you are correct, the employer is not collecting social security and Medicare tax from your wages because of its mistake. If audited, and it is determined that you are subject to social security tax, the IRS will look to the employer for payment. However, the university does have the right to seek recoupment from you. If you believe you should be treated as a resident, I suggest that you try to get a written statement from the university stating that you are not subject to social security and Medicare tax.
341 weeks ago