1.18 Who Is a Resident Alien?
The following tests determine whether an alien is taxed as a U.S. resident. Intent to remain in the U.S. is not considered.
Planning Reminder
You are treated as a resident alien and taxed as a U.S. resident for 2012 tax purposes if you meet either of the following tests:
To determine if you meet the 183-day test for 2012, the following cumulative times are totaled. Each day in the U.S. during 2012 is counted as a full day. Each day in 2011 counts as 1/3 of a day; each day in 2010 counts as 1/6 of a day. Note that you must be physically present in the U.S. for at least 31 days in the current year. If you are not, the 183-day test does not apply.
Other exceptions to the substantial presence test are: commuting from Canada or Mexico; keeping a tax home and close contacts or connections in a foreign country; having a diplomat, teacher, trainee, or student status; being a professional athlete temporarily in the U.S. to compete in a charitable sports event; or being confined in the U.S. for certain medical reasons. These exceptions are explained in the following paragraphs.
Commute from Mexico or Canada.
If you regularly commute to work in the U.S. from Mexico or Canada, commuting days do not count as days of physical presence for the 183-day test.
Tax home/closer connection exception.
If you are in the United States for less than 183 days during 2012, show that you had a closer connection with a foreign country than with the U.S., and keep a tax home there for the year, you generally will not be subject to tax as a U.S. resident even if you meet the substantial presence test. Under this exception, it is possible to have a U.S. abode and a tax home in a foreign country. A tax home is usually where a person has his or her principal place of business; if there is no principal place of business, it is the place of regular abode. Proving a tax home alone is not sufficient; the closer connection relationship must also be shown.
To claim the closer connection exception, you must file Form 8840 explaining the basis of your claim. The tax home/closer connection exception does not apply to an alien who is present for 183 days or more during a year or who has applied for a “green card.” A relative’s application is not considered as the alien’s application.
Exempt-person exception.
Days of presence in the U.S. are not counted under the 183-day test if you are considered an exempt person such as a teacher, trainee, student, foreign-government-related person, or professional athlete temporarily in the U.S. to compete in a charitable sports event.
To exclude days of presence as a teacher, trainee, student, or professional athlete, you must file Form 8843 with the IRS.
A foreign-government-related person is any individual temporarily present in the U.S. who (1) has diplomatic status or a visa that the Secretary of the Treasury (after consultation with the Secretary of State) determined represents full-time diplomatic or consular status; or (2) is a full-time employee of an international organization; or (3) is a member of the immediate family of a diplomat or international organization employee.
A teacher or trainee is any individual other than a student who is temporarily present in the U.S. under a “J” or “Q” visa and who substantially complies with the requirements for being so present.
A student is any individual who is temporarily present in the U.S. under either an “F,” “J,” “M,” or “Q” visa and who substantially complies with the requirements for being so present.
The exception generally does not apply to a teacher or trainee who has been exempt as a teacher, trainee, or student for any part of two of the six preceding calendar years. However, if during the period you are temporarily present in the U.S. under an “F,” “J,” “M,” or “Q” visa and all of your compensation is received from outside the U.S., you may qualify for the exception if you were exempt as a teacher, trainee, or student for less than four years in the six preceding calendar years. The exception also does not apply to a student who has been exempt as a teacher, trainee, or student for more than five calendar years, unless you show that you do not intend to reside permanently in the U.S. and that you have substantially complied with the requirements of the student visa providing for temporary presence in the U.S.
Medical exception.
If you plan to leave but cannot physically leave the U.S. because of a medical condition that arose in the U.S., you may be treated as a nonresident, even if present here for more than 183 days during the year. You must file Form 8843 to claim the medical exception.
Tax treaty exceptions.
The lawful permanent residence test and the substantial physical presence test do not override tax treaty definitions of residence. Thus, you may be protected by a tax treaty from being treated as a U.S. resident even if you would be treated as a resident under either test.
Dual tax status in first year of residency.
If you first became a lawful permanent resident of the U.S. (received a green card) during 2012 and were not a U.S. resident during 2011, your period of U.S. residency begins with the first day in 2012 that you are present in the U.S. with the status of lawful permanent resident. Before that date, you are a nonresident alien. This means that if you become a lawful permanent resident during 2012 and remain a resident at the end of the year, you have a dual status tax year. On Form 1040, you attach a separate statement showing the income for the part of the year you are a nonresident. Form 1040NR (or 1040NR-EZ) may be used as the statement. Write “Dual-Status Return” across the top of the Form 1040 and “Dual-Status Statement” across the top of the Form 1040NR (or 1040NR-EZ).
To figure tax for a dual status year, see IRS Publication 519 and the instructions to Form 1040NR.
You also may have a dual status year if you were not a U.S. resident in 2011, and in 2012 you are a U.S. resident under the 183-day presence test. Your period of U.S. residency starts on the first day in 2012 for which you were physically present; before that date you are treated as a nonresident alien. However, if you meet the 183-day presence test (but not the green card test) and also spent 10 or fewer days in the U.S. during a period in which you had a closer connection to a foreign country than to the U.S., you may disregard the 10-day period. The purpose of this exception is to allow a brief presence in the U.S. for business trips or house hunting before the U.S. residency period starts.
If you are married at the end of the year to a U.S. citizen or resident alien, you and your spouse may elect to be treated as U.S. residents for the entire year by reporting your worldwide income on a joint return. You must attach to the joint return a statement signed by both of you that you are choosing to be treated as full-year U.S. residents.
First-year choice.
If you do not meet either the green card test or the 183-day substantial presence test for the year of your arrival in the U.S. or for the immediately preceding year, but you do meet the substantial presence test for the year immediately following the year of your arrival, you may elect to be treated as a U.S. resident for part of the year of your arrival. To do this, you must (1) be present in the U.S. for at least 31 consecutive days in the year of your arrival; and (2) be present in the U.S. for at least 75% of the number of days beginning with the first day of the 31-consecutive-day period and ending with the last day of the year of arrival. For purposes of this 75% requirement, you may treat up to five days of absence from the U.S. as days of presence within the U.S.
Do not count as days of presence in the U.S. days for which you are an exempt individual as discussed earlier.
You make the first-year election to be treated as a U.S. resident by attaching a statement to Form 1040 for the year of your arrival. A first-year election, once made, may not be revoked without the consent of the IRS.
If you make the election, your residence starting date for the year of your arrival is the first day of the earliest 31-consecutive-day period of presence that you use to qualify for the choice. You are treated as a U.S. resident for the remainder of the year.
Last year of residence.
You are no longer treated as a U.S. resident as of your residency termination date. If you do not have a green card but are a U.S. resident for the year under the 183-day presence test, and you leave the U.S. during that year, your residency termination date is the last day you are present in the U.S., provided that: (1) after leaving the U.S. you had a closer connection to a foreign country than to the U.S. and had your tax home in that foreign country for the rest of the year, and (2) you are not treated as a U.S. resident for any part of the next calendar year.
If during the year you give up your green card (lawful permanent resident status) and meet tests (1) and (2), your residency termination date is the first day that you are no longer a lawful permanent resident. If during the year you meet both the green card test and the 183-day presence test and meet tests (1) and (2), your residency termination date is the later of the last day of U.S. presence or the first day you are no longer a lawful permanent resident. If tests (1) and (2) are not met, the residency termination date is the last day of the calendar year. In the year of your residency termination date, the filing rules for dual status taxpayers in this section apply.
For the year you give up your residence in the United States, you must file Form 1040NR (or Form 1040NR-EZ if eligible) and write “Dual-Status Return” across the top. Attach Form 1040 (or other statement) to show the income for the part of the year you are a resident; across the top write “Dual-Status Statement.” See the instructions to Form 1040NR and IRS Publication 519 for filing the dual status return.