How to Refile a 1040 Return as a 1040-NR Return
A common scenario among our readers and students who have encountered and learned our materials is a desire to refile previous 1040 tax returns filed as a “U.S. person” to transition them to a “nonresident alien” return. This article will provide authorities on how to do that.
If you accidentally filed a Form 1040 as a constitutional citizen or state national, the best solution is to amend it within 3 years of filing to replace it with a 1040NR. The 1040X instructions tell you how to do this. You file 1040x, attach 1040NR and write “Amended” at the top of 1040NR. Below is a link to those instructions:
Instructions for Form 1040-X , IRS
https://www.irs.gov/instructions/i1040x
Note that there is no point in amending unless it will reduce the amount of tax or unless you are being criminally prosecuted for something, since a nonresident alien can’t be criminally prosecuted except for fraud on the return. This is where a lot of people get off track and think that their tax is $0 just because they are a “nonresident alien”. Even “nonresident aliens” owe tax on earnings from federal territory or payments from the government.
More likely if you amend and try to significantly decrease your tax or make it $0, IRS will threaten or impose a frivolous return penalty. The threat of that penalty is, in fact CRIMINAL witness tampering, because the return is signed under penalty of perjury. There is always a risk with an amended return of any kind where you attempt to decrease tax to $0, because the IRS tries to penalize “Zero return” filers, usually ILLEGALLY.
WHEN you amend, it is IMPORTANT to have a cover sheet emphasizing that this is a REPLACEMENT for the original filing, not a NEW return subject to FURTHER frivolous return penalties.
The only scenario we could see where you might have to litigate to get your refund is if you amended to 1040NR, the IRS refused to change your tax accordingly, and you either pay and then claim a refund or they lien/levy and you sue for wrongful collections. In those cases, you would explain that your 1040 was a mistake and have to persuade them that it is unjust for the IRS to not abate the difference in tax.
Lastly, the subject of this article is addressed further in the following offsite resources:
- How to File Returns, Form #09.074, Section 7.9** (Member Subscriptions)
https://sedm.org/product/filing-returns-form-09-074/ - Procedure to File Returns, Form #09.075, Section 31** (Member Subscriptions)
https://sedm.org/product/procedure-to-file-tax-returns-form-09-075/