Closer Connection Exception to the IRS Substantial Presence Test

Closer Connection Exception to the IRS Substantial Presence Test

Closer Connection Exception to the Substantial Presence Test

Closer Connection Exception to the Substantial Presence Test: The U.S. follows a worldwide taxation model. That means the U.S government taxes U.S persons on their worldwide income. Foreign nationals who reside in the U.S. and are neither permanent residents nor U.S. citizens may still be subject to worldwide tax and reporting when they meet the IRS substantial presence test. But, if the person qualifies for the closer connection exception, they may avoid the worldwide taxation rules.  

U.S. person “individuals” are generally broken down into four (4) main categories:

-U.S. Citizen

-Legal Permanent Resident

-Foreign National who meets the Substantial Presence Test

-Former U.S. Person who did not expatriate correctly.

The third category above is the category impacted by the closer connection exception to the substantial presence test.

And, with the IRS taking an aggressive position on issues involving foreign accounts compliance and unreported offshore income, compliance is crucial in order to avoid fines and penalties.

What is the Substantial Presence Test?

The Substantial Presence Test (SPT) is an IRS test developed to trap foreign nationals who are not otherwise subject to U.S. tax on their worldwide income, by deeming them “U.S. persons for tax purposes.”

In order to complete the test, the foreign national calculates the number of days they have been in the U.S. for the past three (3) years.

By meeting “substantial presence,” the individual is considered a U.S. person for tax purposes.

But, even if a person meets substantial presence you may still escape U.S. tax claws by meeting the Closer Connection Exception and filing Form 8840.

How the Closer Connecion Exception Works

U.S. Persons are subject to U.S. tax on their worldwide income. 

For U.S. citizens, this does not come as a surprise.

For Legal Permanent Residents, it may come as a surprise, since many people (understandably) presume that only U.S. citizens can be subject to U.S. tax and reporting on their worldwide income and assets.

Therefore, you can imagine the surprise of many visa holders (and even non-visa holders) when they learn they too may be subject to U.S. tax and reporting on worldwide income and assets.

Foreign National Residing in the U.S.

Oftentimes, before a foreign national becomes a legal permanent resident or citizen of the U.S. they are in the United States on a temporary visa.

When a person is here on a temporary visa, there are different rules in place depending on the type of visa that the person has as to whether they will be subject to U.S. Tax as a Resident or Non-Resident.

For example, if a person has an F-1 visa and is a student then generally they are not subject to US taxation for the first five years. Other visas such as L-1, H1-B, E-2, and O-1 are not so lucky (subject to possible treaty exemption).

Example of Substantial Presence

IRS Substantial Presence Test generally means that you were present in the United States for at least 30 days in the current year and a minimum total of 183 days over 3 years, using the following equation:

  • 1 day = 1 day in the current year
  • 1 day = 1/3 day in the prior year
  • 1 day = 1/6 day two years prior

Example A: If you were here 100 days in 2016, 30 days in 2015, and 120 days in 2014, the calculation is as follows:

  • 2016 = 100 days
  • 2015 = 30 days/3= 10 days
  • 2014 = 120 days/6 = 20 days
  • Total = 130 days, so you would not qualify under the substantial presence test and NOT be subject to U.S. Income tax on your worldwide income (and you will only pay tax on money earned while working in the US).

Example B: If you were here 180 days in 2016, 180 days in 2015, and 180 days in 2014, the calculation is as follows:

  • 2016 = 180 days
  • 2015 = 180 days/3= 60 days
  • 2014 = 180 days/6 = 30 days
  • Total = 270 days, so you would qualify under the substantial presence test and will be subject to U.S. Income tax on your worldwide income, unless another exception applies.

Closer Connection Test as provided by the IRS

Even if you meet the substantial presence test, you can still be treated as a nonresident alien if you:

Are present in the United States for less than 183 days during the year,

Maintain a tax home in a foreign country during the year (Refer to Chapter 28 of Publication 17for a discussion of the tax home concept), and

Have a closer connection during the year to one foreign country in which you have a tax home than to the United States (unless you have a closer connection to two foreign countries, discussed next).

For determining whether you have a closer connection to a foreign country, your tax home must also be in existence for the entire current year, and must be located in the same foreign country for which you are claiming to have a closer connection.

Closer Connection to Two Foreign Countries

You can demonstrate that you have a closer connection to two foreign countries (but not more than two) if you meet all of the following conditions:

You maintained a tax home beginning on the first day of the year in one foreign country,

You changed your tax home during the year to a second foreign country,

You continued to maintain your tax home in the second foreign country for the rest of the year,

You had a closer connection to each foreign country than to the United States for the period during which you maintained a tax home in that foreign country, and

You are subject to tax as a resident under the tax laws of either foreign country for the entire year or subject to tax as a resident in both foreign countries for the period during which you maintained a tax home in each foreign country.

Establishing A Closer Connection

You will be considered to have a closer connection to a foreign country than the United States if you or the IRS establishes that you have maintained more significant contacts with the foreign country than with the United States.

In determining whether you have maintained more significant contacts with the foreign country than with the United States, the facts and circumstances to be considered include, but are not limited to, the following:

The country of residence you designate on forms and documents

The types of official forms and documents you file, such as Form W-9, Request for Taxpayer Identification Number and Certification, W-8BEN, Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding, or W-8ECI, Certificate of Foreign Person’s Claim That Income Is Effectively Connected With the Conduct of a Trade or Business in the United States.

The location of:

Your permanent home,

Your family,

Your personal belongings, such as cars, furniture, clothing, and jewelry,

Your current social, political, cultural, or religious affiliations,

Your business activities (other than those that constitute your tax home),

The jurisdiction in which you hold a driver’s license,

The jurisdiction in which you vote, and

Charitable organizations to which you contribute.

Note: It does not matter whether your permanent home is a house, an apartment, or a furnished room. It also does not matter whether you rent or own it. It is important, however, that your home be available at all times, continuously, and not solely for short stays.

When You Cannot Claim Closer Connection to a Foreign Country

You cannot claim you have a closer connection to a foreign country if either of the following applies:

You personally applied, or took other steps during the year, to change your status to that of a Lawful Permanent Resident, or

You had an application pending for adjustment of status to Lawful Permanent Resident during the current year.

Indications of Intent to Change Your Status

If you have filed any of the following forms, this is an indication that your intent is to become a Lawful Permanent Resident of the United States, and is an indication that you are not eligible for the Closer Connection Exception.

Form I-508, Waiver of Rights, Privileges, Exemptions and Immunities

Form I-485, Application to Register Permanent Residence or Adjust Status

Form I-130, Petition for Alien Relative

Form I-140, Immigrant Petition for Alien Worker

Form ETA-750, Application for Alien Employment Certification

Form OF-230, Application for Immigrant Visa and Alien Registration

How to Claim the Closer Connection Exception

You must file Form 8840, Closer Connection Exception Statement for Aliens, to claim the Closer Connection Exception.

If you are filing a U.S. federal income tax return please attach Form 8840 to the income tax return.

 If you do not have to file a U.S. federal income tax return, send Form 8840 to the Internal Revenue Service Center (indicated in the instructions attached to Form 8840) by the due date for filing the income tax return.

Requirement to File Form 8840

“If you do not timely file Form 8840, Closer Connection Exception Statement for Aliens, you cannot claim 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 filing requirements and significant steps to comply with those requirements.”

What if I am Out of Offshore Compliance?

If you are out of offshore compliance, you may consider offshore voluntary disclosure to safely get into IRS offshore compliance.

Golding & Golding: About Our International Tax Law Firm

Golding & Golding specializes exclusively in international tax, and specifically IRS offshore disclosure

We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants, and Financial Professionals across the globe. Our attorneys have worked with thousands of clients on offshore disclosure matters, including FATCA & FBAR.

Each case is led by a Board-Certified Tax Law Specialist with 20 years of experience, and the entire matter (tax and legal) is handled by our team, in-house.

*Please beware of copycat tax and law firms misleading the public about their credentials and experience.

Less than 1% of Tax Attorneys Nationwide Are Certified Specialists

Sean M. Golding is one of less than 350 Attorneys (out of more than 200,000 practicing California Attorneys) to earn the Certified Tax Law Specialist credential. The credential is awarded to less than 1% of Attorneys.

Recent Golding & Golding Case Highlights

  • We represented a client in an 8-figure disclosure that spanned 7 countries.
  • We represented a high-net-worth client to facilitate a complex expatriation with offshore disclosure.
  • We represented an overseas family with bringing multiple businesses & personal investments into U.S. tax and offshore compliance.
  • We took over a case from a small firm that unsuccessfully submitted multiple clients to IRS Offshore Disclosure.
  • We successfully completed several recent disclosures for clients with assets ranging from $50,000 – $7,000,000+.

How to Hire Experienced Offshore Counsel?

Generally, experienced attorneys in this field will have the following credentials/experience:

  • 20-years experience as a practicing attorney
  • Extensive litigation, high-stakes audit and trial experience
  • Board Certified Tax Law Specialist credential
  • Master’s of Tax Law (LL.M.)
  • Dually Licensed as an EA (Enrolled Agent) or CPA

Interested in Learning More about Golding & Golding?

No matter where in the world you reside, our international tax team can get you IRS offshore compliant. 

Golding & Golding specializes in FBAR and FATCA. Contact our firm today for assistance with getting compliant.