Effect of Tax Treaties

The rules given here to determine if you are a U.S. resident do not override tax treaty definitions of residency. If your residency is determined under a treaty and not under the rules discussed here, you must file a fully completed Form 8833 if the payments or income items reportable because of that determination are more than $100,000. If you are a dual resident taxpayer, you can still claim the benefits under an income tax treaty. A dual resident taxpayer is one who is a resident of both the United States and another country under each country's tax laws. The income tax treaty between the two countries must contain a provision that provides for resolution of conflicting claims of residence. 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. For purposes other than figuring your tax, you will be treated as a U.S. resident. For example, the rules discussed here do not affect your residency time periods as discussed, later, under Dual-Status Aliens.

Information to be reported.   If you are a dual resident taxpayer and you claim treaty benefits, you must timely file a return (including extensions) using Form 1040NR or Form 1040NR-EZ, and compute your tax as a nonresident alien. You must also attach a fully completed Form 8833. See Reporting Treaty Benefits Claimed in chapter 9 for more information on reporting treaty benefits.

Dual-Status Aliens

You can be both a nonresident alien and a resident alien during the same tax year. This usually occurs in the year you arrive in or depart from the United States. Aliens who have dual status should see chapter 6 for information on filing a return for a dual-status tax year.

First Year of Residency

If you are a U.S. resident for the calendar year, but you were not a U.S. resident at any time during the preceding calendar year, you are a U.S. resident only for the part of the calendar year that begins on the residency starting date. You are a nonresident alien for the part of the year before that date.

Residency starting date under substantial presence test.   If you meet the substantial presence test for a calendar year, your residency starting date is generally the first day you are present in the United States during that calendar year. However, you do not have to count up to 10 days of actual presence in the United States if on those days you establish that:

1. You had a closer connection to a foreign country than to the United States, and
2. Your tax home was in that foreign country.

See Closer Connection to a Foreign Country, earlier.

In determining whether you can exclude up to 10 days, the following rules apply.

1. You can exclude days from more than one period of presence as long as the total days in all periods are not more than 10.
2. You cannot exclude any days in a period of consecutive days of presence if all the days in that period cannot be excluded.
3. Although you can exclude up to 10 days of presence in determining your residency starting date, you must include those days when determining whether you meet the substantial presence test.

Example.   Ivan Ivanovich is a citizen of Russia. He came to the United States for the first time on January 6, 2001, to attend a business meeting and returned to Russia on January 10, 2001. His tax home remained in Russia. On March 1, 2001, he moved to the United States and resided here for the rest of the year. Ivan is able to establish a closer connection to Russia for the period January 6-10. Thus, his residency starting date is March 1.

Statement required to exclude up to 10 days of presence.   You must file a statement with the IRS if you are excluding up to 10 days of presence in the United States for purposes of your residency starting date. You must sign and date this statement and include a declaration that it is made under penalties of perjury. The statement must contain the following information (as applicable).

1. Your name, address, U.S. taxpayer identification number (if any), and U.S. visa number (if any).
2. Your passport number and the name of the country that issued your passport.
3. The tax year for which the statement applies.
4. The first day that you were present in the United States during the year.
5. The dates of the days you are excluding in figuring your first day of residency.
6. Sufficient facts to establish that you have maintained your tax home in and a closer connection to a foreign country during the period you are excluding.

Attach the required statement to your income tax return. If you are not required to file a return, send the statement to the Internal Revenue Service Center, Philadelphia, PA 19255, on or before the due date for filing an income tax return. The due date for filing is discussed in chapter 7.

If you do not file the required statement as explained above, you cannot claim that you have a closer connection to a foreign country or countries. Therefore, your first day of residency will be the first day you are present in the United States. This does not apply if you can show by clear and convincing evidence that you took reasonable actions to become aware of the requirements for filing the statement and significant steps to comply with those requirements.

Residency starting date under green card test.   If you meet the green card test at any time during a calendar year, but do not meet the substantial presence test for that year, your residency starting date is the first day in the calendar year on which you are present in the United States as a lawful permanent resident.

If you meet both the substantial presence test and the green card test, your residency starting date is the earlier of the first day during the year you are present in the United States under the substantial presence test or as a lawful permanent resident.

Residency during the preceding year.   If you were a U.S. resident during any part of the preceding calendar year and you are a U.S. resident for any part of the current year, you will be considered a U.S. resident at the beginning of the current year. This applies whether you are a resident under the substantial presence test or green card test.

Example.   Robert Bach is a citizen of Switzerland. He came to the United States as a U.S. resident for the first time on May 1, 2000, and remained until November 5, 2000, when he returned to Switzerland. Robert came back to the United States on March 5, 2001, as a lawful permanent resident and still resides here. In calendar year 2001, Robert's U.S. residency is deemed to begin on January 1, 2001, because he qualified as a resident in calendar year 2000.

First-Year Choice

If you do not meet either the green card test or the substantial presence test for 2000 or 2001 and you did not choose to be treated as a resident for part of 2000, but you meet the substantial presence test for 2002, you can choose to be treated as a U.S. resident for part of 2001. To make this choice, you must:

1. Be present in the United States for at least 31 days in a row in 2001, and
2. Be present in the United States for at least 75% of the number of days beginning with the first day of the 31-day period and ending with the last day of 2001. For purposes of this 75% requirement, you can treat up to 5 days of absence from the United States as days of presence in the United States.

When counting the days of presence in (1) and (2) above, do not count the days you were in the United States under any of the exceptions discussed, earlier, under Days of Presence in the United States.

If you make the first-year choice, your residency starting date for 2001 is the first day of the earliest 31-day period (described in (1) above) that you use to qualify for the choice. You are treated as a U.S. resident for the rest of the year. If you are present for more than one 31-day period and you satisfy condition (2) above for each of those periods, your residency starting date is the first day of the first 31-day period. If you are present for more than one 31-day period but you satisfy condition (2) above only for a later 31-day period, your residency starting date is the first day of the later 31-day period.

Example 1.   Juan DaSilva is a citizen of the Philippines. He came to the United States for the first time on November 1, 2001, and was here on 31 consecutive days (from November 1 through December 1, 2001). Juan returned to the Philippines on December 1 and came back to the United States on December 17, 2001. He stayed in the United States for the rest of the year. During 2002, Juan was a resident of the United States under the substantial presence test. Juan can make the first-year choice for 2001 because he was in the United States in 2001 for a period of 31 days in a row (November 1 through December 1) and for at least 75% of the days following (and including) the first day of his 31-day period (46 total days of presence in the United States divided by 61 days in the period from November 1 through December 31 equals 75.4%). If Juan makes the first-year choice, his residency starting date will be November 1, 2001.

Example 2.   The facts are the same as in Example 1, except that Juan was also absent from the United States on December 24, 25, 29, 30, and 31. He can make the first-year choice for 2001 because up to 5 days of absence are considered days of presence for purposes of the 75% requirement.

Statement required to make the first-year choice.   You must attach a statement to Form 1040 to make the first-year choice. The statement must contain your name and address and specify the following.

1. That you are making the first-year choice.
2. That you were not a resident in 2000.
3. That you are a resident under the substantial presence test in 2002.
4. The number of days of presence in the United States during 2002.
5. The date or dates of your 31-day period of presence and the period of continuous presence in the United States during 2001.
6. The date or dates of absence from the United States during 2001 that you are treating as days of presence.

You cannot file Form 1040 or the statement until you meet the substantial presence test for 2002. If you have not met the test for 2002 as of April 15, 2002, you can request an extension of time for filing your 2001 Form 1040 until a reasonable period after you have met that test. To request an extension to file until August 15, 2002, use Form 4868, Application for Automatic Extension of Time To File U.S. Individual Income Tax Return. You can file the paper form or use one of the electronic filing options explained in the Form 4868 instructions. You should pay with this extension the amount of tax you expect to owe for 2001 figured as if you were a nonresident alien the entire year. You can use Form 1040NR or Form 1040NR-EZ to figure the tax. Enter the tax on Form 4868. If you do not pay the tax due, you will be charged interest on any tax not paid by the regular due date of your return, and you may be charged a penalty on the late payment. If you need more time after filing Form 4868, file Form 2688, Application for Additional Extension of Time To File U.S. Individual Income Tax Return.

Once you make the first-year choice, you may not revoke it without the approval of the Internal Revenue Service.

If you do not follow the procedures discussed here for making the first-year choice, you will be treated as a nonresident alien for all of 2001. However, this does not apply if you can show by clear and convincing evidence that you took reasonable actions to become aware of the filing procedures and significant steps to comply with the procedures.

Choosing Resident Alien Status

If you are a dual-status alien, you can choose to be treated as a U.S. resident for the entire year if:

1. You were a nonresident alien at the beginning of the year,
2. You are a resident alien or U.S. citizen at the end of the year,
3. You are married to a U.S. citizen or resident alien at the end of the year, and
4. Your spouse joins you in making the choice.

This includes situations in which both you and your spouse were nonresident aliens at the beginning of the tax year and both of you are resident aliens at the end of the tax year.

If you make this choice, the following rules apply.

• You and your spouse are treated as U.S. residents for the entire year for income tax purposes.
• You and your spouse are taxed on worldwide income.
• You and your spouse must file a joint return for the year of the choice.
• Neither you nor your spouse can make this choice for any later tax year, even if you are separated, divorced, or remarried.
• The special instructions and restrictions for dual-status taxpayers in chapter 6 do not apply to you.

Note.   A similar choice is available if, at the end of the tax year, one spouse is a nonresident alien and the other spouse is a U.S. citizen or resident. See Nonresident Alien Spouse Treated as a Resident, later. If you previously made that choice and it is still in effect, you do not need to make the choice explained here.

Making the choice.   You should attach a statement signed by both spouses to your joint return for the year of the choice. The statement must contain the following information.

1. A declaration that you both qualify to make the choice and that you choose to be treated as U.S. residents for the entire tax year.
2. The name, address, and taxpayer identification number (SSN or ITIN) of each spouse. (If one spouse died, include the name and address of the person who makes the choice for the deceased spouse.)

You generally make this choice when you file your joint return. However, you also can make the choice by filing Form 1040X. Attach Form 1040, Form 1040A, or Form 1040EZ and print Amended across the top of the corrected return. If you make the choice with an amended return, you and your spouse must also amend any returns that you may have filed after the year for which you made the choice.

You generally must file the amended joint return within 3 years from the date you filed your original U.S. income tax return or 2 years from the date you paid your income tax for that year, whichever is later.

Last Year of Residency

If you were a U.S. resident in 2001 but are not a U.S. resident during any part of 2002, you cease to be a U.S. resident on your residency termination date. Your residency termination date is December 31, 2001, unless you qualify for an earlier date as discussed next.

Earlier residency termination date.   You may qualify for a residency termination date that is earlier than December 31. This date is:

1. The last day in 2001 that you are physically present in the United States, if you met the substantial presence test,
2. The first day in 2001 that you are no longer a lawful permanent resident of the United States, if you met the green card test, or
3. The later of (1) or (2), if you met both tests.

You can use this date only if, for the remainder of 2001, your tax home was in a foreign country and you had a closer connection to that foreign country. See Closer Connection to a Foreign Country, earlier.

A long-term resident who ceases to be a lawful permanent resident may be subject to special reporting requirements and tax provisions. See Expatriation Tax in chapter 4.

De minimis presence.   If you are a U.S. resident because of the substantial presence test and you qualify to use the earlier residency termination date, you can exclude up to 10 days of actual presence in the United States in determining your residency termination date. In determining whether you can exclude up to 10 days, the following rules apply.

1. You can exclude days from more than one period of presence as long as the total days in all periods are not more than 10.
2. You cannot exclude any days in a period of consecutive days of presence if all the days in that period cannot be excluded.
3. Although you can exclude up to 10 days of presence in determining your residency termination date, you must include those days when determining whether you meet the substantial presence test.

Example.   Lola Bovary is a citizen of Malta. She came to the United States for the first time on March 1, 2001, and resided here until August 25, 2001. On December 12, 2001, Lola came to the United States for vacation and stayed here until December 16, 2001, when she returned to Malta. She is able to establish a closer connection to Malta for the period December 12-16. Lola is not a U.S. resident for tax purposes during 2002 and can establish a closer connection to Malta for the rest of calendar year 2001. Lola is a U.S. resident under the substantial presence test for 2001 because she was present in the United States for 183 days (178 days for the period March 1 to August 25 plus 5 days in December). Lola's residency termination date is August 25, 2001.

Residency during the next year.   If you are a U.S. resident during any part of 2002 and you are a resident during any part of 2001, you will be taxed as a resident through the end of 2001. This applies whether you have a closer connection to a foreign country than the United States during 2001, and whether you are a resident under the substantial presence test or green card test.

Statement required to establish your residency termination date.   You must file a statement with the IRS to establish your residency termination date. You must sign and date this statement and include a declaration that it is made under penalties of perjury. The statement must contain the following information (as applicable).

1. Your name, address, U.S. taxpayer identification number (if any), and U.S. visa number (if any).
2. Your passport number and the name of the country that issued your passport.
3. The tax year for which the statement applies.
4. The last day that you were present in the United States during the year.
5. Sufficient facts to establish you have maintained your tax home in and that you have a closer connection to a foreign country following your last day of presence in the United States during the year or following the abandonment or rescission of your status as a lawful permanent resident during the year.
6. The date that your status as a lawful permanent resident was abandoned or rescinded.
7. Sufficient facts (including copies of relevant documents) to establish that your status as a lawful permanent resident has been abandoned or rescinded.
8. If you can exclude days under the de minimis presence rule, discussed earlier, include the dates of the days you are excluding and sufficient facts to establish that you have maintained your tax home in and that you have a closer connection to a foreign country during the period you are excluding.

Attach the required statement to your income tax return. If you are not required to file a return, send the statement to the Internal Revenue Service Center, Philadelphia, PA 19255, on or before the due date for filing an income tax return. The due date for filing is discussed in chapter 7.

If you do not file the required statement as explained above, you cannot claim that you have a closer connection to a foreign country or countries. This does not apply if you can show by clear and convincing evidence that you took reasonable actions to become aware of the requirements for filing the statement and significant steps to comply with those requirements.

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