Green card holder - commuter status. Can I still use 1040NR?

[dorins]

Nelsona:

Last year I obtained the I-551 (green card) with commuter status.
Work in MI but live in Canada (i.e. cross the border back to Canada daily).

Can I still use the 1040 proforma and modified tax rate on the 1040NR?
My spouse is still under a TN visa, also working in MI and living in Canada.

A colleague of mine in a similar situation was told by his tax preparer that he has to use the 1040.

Thank you

[nelsona]

There is allowance to use 1040NR even if you have a GC, by treaty, although it is rarely recommended.

But the fact that you are commuter GC, and that you clearly live in canada, you should be able to file 1040NR, but you would need to attach a carefully worded 8833 to your 1040NR, outlineing that you are using the treaty to determine that you are aCdn tax resident.

Once this is done, a 1040NR using the non-discrimination clause is permitted.

This cannot be done by a US citizen however.

Note that filing 1040NR and 8833 when holding a 'regular' GC is NOT recommended, as it establishes that you are not maintaining the requisite ties to US, and in essence not fulfilling one of the requirements of GC.

I do know of one individual who continuously files 1040NR while holding GC without problems -- yet.

[dorins]

Understood, thank you Nelsona.