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Bona Fide Residence or Physical Presence Test


Like a U.S. citizen, a resident alien is generally taxed on worldwide income by the United States. The foreign host country may also tax on that income from a U.S. citizen or resident alien who receives income in a foreign country, which may contribute to double taxation. Several provisions, including the foreign earned income exclusion and the housing exclusion or deduction, are intended to help alleviate this situation.


Qualifications

To qualify for these tax benefits, a taxpayer must:

• have a tax home in a foreign country,

• have foreign earned income, and

• be a U.S. citizen or a resident alien who meets the bona fide residence test or the physical presence test in a foreign country.


Tax Home. A tax home is generally the taxpayer’s main place of business or employment. If the individual has no principal place of business, his or her tax home is at the individual’s regular place of abode. The location of the abode is based on where the taxpayer maintains their family, economic and personal ties.

Foreign country. A foreign country includes any territory under the sovereignty of a government other than that of the United States. This excludes Antarctica or U.S. territories such as Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, the U.S. Virgin Islands, and American Samoa.

New developments: Relief due to the COVID-19 emergency. IRS offered relief to individuals and businesses related to travel disruptions resulting from the COVID-19 emergency. Under this relief, the U.S. presence that is presumed to arise from travel disruptions caused by the COVID-19 emergency will not be counted for purposes of determining U.S. tax residency and for purposes of determining whether an individual qualifies for tax treaty benefits for income from personal services performed in the United States.


Bona Fide Residence Test

To meet this test, an individual must be a bona fide resident of a foreign country for an uninterrupted period that includes an entire tax year (e.g., January 1 through December 31, for calendar-year taxpayers). During the period of bona fide residence in a foreign country, the taxpayer can leave the country for brief or temporary trips back to the United States or elsewhere for vacation or business. However, to keep their status as a bona fide resident of a foreign country, they must have a clear intention of returning from such trips, without unreasonable delay, to their foreign residence or to a new bona fide residence in another foreign country.


The determination of a bona fide resident is based on all the facts and circumstances. The Courts have considered the length of stay plus additional factors such as:

• a taxpayer’s intention,

• establishment of a home in a foreign country,

• participation in social and cultural activities in a foreign community,

• nature and duration of employment, and

• reasons for temporary absences from the foreign home.


Physical Presence Test

To meet this test, the individual taxpayer must be physically present in the foreign country for at least 330 full days during 12 consecutive months. It can begin with any day of the month. A full day is a period of 24 consecutive hours, beginning at midnight. Additionally, an individual's physical presence in the foreign country may be for any reason such as for business purposes or vacation time, or any combination of purposes.

Certain days are excluded and do not count as days spent in the foreign country if they are:

• spent on traveling to and from the United States over international waters (in transit),

• to recover from an illness,

• family emergencies,

• war or civil unrest, or

• under orders from superiors.