IRS Update –
Foreign Earned Income Exclusion
Bona Fide Residence Test for United States Citizens living abroad
In April 2016 the IRS updated it’s guidance for passing the bona fide residence test in order to qualify for the foreign earned income exclusion. The bona fide residence test differs from the physical presence test by the fact that there is no set limit in the amount of days a U.S. citizen can stay in the United States during a 12 month period.
To qualify for bona fide residence, you must reside in a foreign country for an uninterrupted period that includes an entire tax year. An entire tax year is from January 1 through December 31 for taxpayers who file their income tax returns on a calendar year basis.
During the period of bona fide residence in a foreign country, you can leave the country for brief or temporary trips back to the United States or elsewhere for vacation or business.”
To maintain your status as a bona fide resident of a foreign country, you must have a clear intention of returning from such trips, without unreasonable delay, to your foreign residence or to a new bona fide residence in another foreign country.
Therefore your intent has to be to return to and reside in the country in which you are claiming bona fide residence (the foreign country). Claiming bona fide residence is not a “carte blanche” to spend unlimited time in the United States.
Thus you may not qualify for bona fide residence in the first year you move to a new country unless you moved there on January 1st.
Neither of these tests is absolute, the IRS caveats these rules with the statement “You do not automatically acquire bona fide resident status merely by living in a foreign country or countries for 1 year”.
It is understandable that this may leave any taxpayer with questions due to the fact that the IRS qualifies the issue as a facts and circumstances test. In short the IRS will in case of audit determine the validity of the claim based on the taxpayer’s individual situation and make a determination specific to that case.
As always the devil is in the detail with US expat taxation. Components of this test are definitely open to interpretation and able to be challenged by the IRS.
If you have any concerns please contact the team at US Global Tax (
usglobaltax.com) or other US Expat Tax Specialists. It is preferable to get it right, from the start than to suffer the potential penalties and interest that may be applied if you are incorrect.
Thomas Carden, Director, US Global Tax