Cliquez sur "Francais" dans le coin supérieur droit de lire cet article en Français
The information contained in this article is for informational purposes only, and is not legal advice or a substitute for legal counsel.
Many people, especially regular snow birds, have a mis-conception about the duration of their annual stay in the United States. When you ask someone about how long can they stay in the USA each year, many people will tell you : 183 days. In a sense, that is true, because the laws permit you to stay that much as an Alien individual, ( Non-resident person). But in reality, this is misleading to many people. First of all, think 182 days, not 183. At 183 days of presence on American soil each year, YOU MUST FILE YOUR INCOME TAXES in the USA as well as your country of residence. Second, think 121 days... if you stay in the United States of America an average of 121 days per year or more, you must file Form 8840 to establish that you have more connections to a foreign country than to the United States.
BE CARFEUL ABOUT THE 183 DAY COUNT : Even though the Law in the USA permits you to stay 182 days per year as a non-resident Alien without having to declare any taxes, this 182 day period is calculated on the basis of the last 3 years of your presence in the USA, and there's a special formula for that.
Here's how it works: For example, if we take 2012, 2011 and 2010. Let's say you stayed 130 days in 2012, 140 days in 2011, and 120 days in 2010, you are actually staying less than the required days (182 days), right? . Wrong ! Because this is how it is calculated: 130 days for 2012 (counted at 100% = 130 days), PLUS 47 days for 2011 ( 1/3 of 140) , PLUS 20 days for 2010 ( 1/6 of 120 ), then your total is 197 !! As such, you may be treated as a US resident and have to file your taxes accordingly. To avoid that, you should file Form 8840.
Please read more about the form 8840 below, and if you need any further info , go to : www.irs.gov
Closer Connection Exception Statement for Aliens - Purpose of Form 8840
Use Form 8840 to claim the closer connection to a foreign country(ies) exception to the substantial presence test.
Note: You are not eligible for the closer connection exception if any of the following apply.
• You were present in the United States 183 days or more in calendar year 2012.
• You are a lawful permanent resident of the United States (that is, you are a green card holder).
• You have applied for, or taken other affirmative steps to apply for, a green card; or have an application pending to change your status to that of a lawful permanent resident of the United States.
Even if you are not eligible for the closer connection exception, you may qualify for nonresident status by reason of a treaty. See the instructions for line 6 of the form for more details.
Who Must File
If you are an alien individual and you meet the closer connection exception to the substantial presence test, you must file Form 8840 with the IRS to establish
your claim that you are a nonresident of the United States by reason of that exception.
For more details on the substantial presence test and the closer connection exception, see Pub. 519, U.S. Tax Guide for Aliens.
Note. You can download forms and publications at IRS.gov.
Substantial Presence Test
You are considered a U.S. resident if you meet the substantial presence test for 2012. You meet this test if you were physically present in the United States for at least:
• 31 days during 2012 and
• 183 days during the period 2012, 2011, and 2010, counting all the days of physical presence in 2012 but only 1/3 the number of days of presence in 2011 and only 1/6 the number of days in 2010.
Days of presence in the United States.
Generally, you are treated as being present in the United States on any day that you are physically present in the country at any time during the day. (meaning you should count few hours of a day as one full day)
However, you do not count the following days of presence in the United States for purposes of the substantial presence test.
1. Days you regularly commuted to work in the United States from a residence in Canada or Mexico.
2. Days you were in the United States for less than 24 hours when you were traveling between two places outside the United States.
3. Days you were temporarily in the United States as a regular crew member of a foreign vessel engaged in transportation between the United States and a foreign country or a possession of the United States unless you otherwise engaged in trade or business on such a day.
4. Days you were unable to leave the United States because of a medical condition or medical problem that arose while you were in the United States.
5. Days you were an exempt individual.
In general, an exempt individual is a
(a) foreign government-related individual,
(b) teacher or trainee,
(c) student, or
(d) professional athlete competing in a charitable sports event. For more details, see Pub. 519.
Note. If you qualify to exclude days of presence in the United States because you were an exempt individual (other than a foreign government-related individual) or because of a medical condition or medical problem (see item 4 above), you must file Form 8843, Statement for Exempt Individuals and Individuals With a Medical Condition.
Closer Connection Exception
Even though you would otherwise meet the substantial presence test, you will not be treated as a U.S. resident for 2012 if:
• You were present in the United States for fewer than 183 days during 2012,
• You establish that during 2012, you had a tax home in a foreign country, and
• You establish that during 2012, you had a closer connection to one foreign country in which you had a tax home than to the United States, unless you had a closer connection to two foreign countries.
Closer Connection to Two Foreign Countries
You may demonstrate that you have a closer connection to two foreign countries (but not more than two) if all five of the following apply.
1. You maintained a tax home as of January 1, 2012, in one foreign country.
2. You changed your tax home during 2012 to a second foreign country.
3. You continued to maintain your tax home in the second foreign country for the rest of 2012.
4. 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.
5. You are subject to tax as a resident under the tax laws of either foreign country for all of 2012 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.
Your tax home is your main place of business, employment, or post of duty regardless of where you maintain your family home. If you do not have a regular or main place of business because of the nature of your work, then your tax home is the place where you regularly live. If you do not fit either of these categories, you are considered an itinerant and your tax home is wherever you work.
Establishing a Closer Connection
You will be considered to have a closer connection to a foreign country than to 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.
Your answers to the questions in Part IV of the form will help establish the jurisdiction to which you have a closer connection.
When and Where To File
If you are filing a 2012 Form 1040NR or Form 1040NR-EZ, attach Form 8840 to it. Mail your tax return by the due date (including extensions) to the address shown in your tax return instructions.
If you do not have to file a 2012 tax return, mail Form 8840 to the Department of the Treasury, Internal Revenue Service Center, Austin, TX 73301-0215 by the due date (including extensions) for filing Form 1040NR or Form 1040NR-EZ.
Penalty for Not Filing Form 8840
If you do not timely file Form 8840, you will not be eligible to claim the closer connection exception and may be treated as a U.S. resident.
For the latest information about developments or to download Form 8840 go to www.irs.gov/form8840.