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Bona fide resident status for the earned income exclusion is now available to foreign nationals under certain U.S. treaties.

Rev. Rul. 91-58 allows foreign nationals to use the bona fide residence test for purposes of computing the foreign earned income exclusion under Sec. 911.

Sec. 911 allows a "qualified individual" to elect to exclude an amount of foreign earnings from U.S. gross income. To exclude such income, a U.S. citizen must meet certain tess: (1) The individual's tax hme must be in a foreign country for an uninterrupted period that includes an entire tax year (the bona fide residence test) or (2) the individual's tax home must be a foreign country, and he must be present in the foreign country during at least 330 full days of any 12-consecutive-month period (the physical presence test).

Before 1978, the Sec. 911 exclusion was available only to U.S. citizens. Only by applying the nondiscrimination article in certain income tax treaties between the United States and foreign countries could an alien individual residing in the United States qualify under the physical presence test.

Rev. Rul. 72-330 provided that the nondiscrimination article in a particular treaty would be applied without regard to the savings clause in such treaty, as long as there was no specific provision to the contrary. (A savings clause provides that either party to the treaty may tax its residents and its nationals as if the treaty was not in effect.)

The Foreign Earned Income Act of 1978 provided that an alien individual resident in the United States may qualify for Sec. 911 benefits by satisfying the physical presence test.

Sec. 7701(b) was added by the Deficit Reduction Act of 1984. This section provides a statutory definition of a resident alien individual. In order to be considered to be a lawful permanent U.S. resident, the individual must meet the substantial presence test of Sec. 7701(b)(3), or must make an election to be treated as a U.S. resident. Thereore, it is now possible, for purposes of the Sec. 911 exclusion, to be a U.S. resident (as defined in Sec. 7701(b)), as well as a bona fide resident of a foreign country under Regs. Sec. 1.871-2(b).

Rev. Rul. 91-58 deals with a U.S. corporation that provides specialized services in the United States and foreign countries. The company employs citizens of the United Kingdom whose tax homes are in the United Kingdom and other foreign countries. These employees are considered U.S. residents within the meaning of Sec. 7701(b), even though they are employed in the United Kingdom.

Based on the principles in Rev. Rul. 72-330, the employees of the U.S. corporation should be allowed to use the bona fide residence test of SEc. 911.

Paragraph (1) of Article 24 (the nondiscrimination provisions) of the U.S.-U.K. Income Tax Convention provides that individuals who are citizens of one of the treaty party countries, but who are residents of the other treaty party country, shall not be subject to any more burdensome taxation requirements than the host country citizens are subject to. Paragraph (4) of this same article provides that the savings clause of Paragraph (3) shall not affect the application of the nondiscrimination article.

Since U.S. citizens may be considered to be "qualified individuals" for purposes of Sec. 911(d) under either the bona fide residence test or physical presence test, requiring U.K. citizens to satisfy the physical presence test subjects them to a more burdensome requirement than that of U.S. citizens in the same circumstances. Hence, U.K. citizens who are U.S. residents within the meaning of Sec. 7701(b) must be allowed to use the bona fide residence test under Sec. 911.

The conclusions reached in Rev. Rul. 91-58 apply to all U.S. incme tax treaties now in effect with the following countries: Australia, Austria, Barbados, Belgium, Canada, Cyprus, Denmark, Egypt, Finland, France, The Federal Republic of Germany, Greece, Hungary, Iceland, India, Indonesia, Ireland, Italy, Jamaica, Japan, South Korea, Luxembourg, Malta, Morocco, The Netherlands, New Zealand, Norway, Pakistan, people's Republic of China, The Philippines, Poland, Romania, Spain, Sweden, Switzerland, Trinidad and Tobago, and Tunisia.
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Author:Evans, Ginger G.
Publication:The Tax Adviser
Date:Feb 1, 1992
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