“5.4.1
General
(…) Resident aliens are taxed on their worldwide income in the same manner as US citizens (see Chapter 3). Thus an individual's status as resident or nonresident is a crucial element in establishing the appropriate taxing regime. The following material deals with the determination of resident or nonresident status and then examines in more detail the rules for the taxation of nonresident aliens. (…)
5.4.2
Determination of Status as Resident or Nonresident
Section 7701(b) has detailed rules to determine the resident or nonresident status of aliens.48 In general, an alien will be treated as a US resident if she meets any of the following three tests:
(1) the permanent residence test;
(2) the substantial presence test;
(3) the first year election.
In all other circumstances, she will be treated as a nonresident.
5.4.2.1 The Permanent Residence Test
If an alien has the status of having been lawfully accorded the privilege of residing in the US under US immigration laws,49 she is treated as a resident alien until such status has been revoked or otherwise terminated. Resident treatment under this test does not require that the alien actually be present in the US at any time during the year in question. The taxpayer's status as a “resident” under this rule continues unless the immigration status is “rescinded or administratively or judicially determined to have been abandoned.”50
5.4.2.2 The Substantial Presence Test
Even if an alien does not have permanent resident status, she will be treated as a resident for tax purposes for the current year if:
(1) such individual was present in the US on at least thirty-one days during the calendar year; and
(2) the sum of the number of days on which the individual was present in the US during the current year, plus one third of the number of days the individual was present in the US the prior year, plus one sixth of the number of days the individual was present in the US two years ago equals or exceeds 183 days.51
Even if the alien individual meets this total days present calculation, she can avoid resident status if she: (1) is present in the US present fewer than 183 days in the current year, (2) can establish that she has her “tax home” (generally her principal place of business) in a foreign country, and (3) has a closer connection to that country than to the US.52 Thus, the substantial presence test depends significantly on what counts as a day present in the US. As an initial matter an alien is treated as “present” in the US for any day such individual is physically present at any time during the day.53 However, a number of statutory exemptions are available that allow an individual to not count certain days that the individual was in fact in the US. For example, any days present in the US when the taxpayer qualified as an “exempt individual” do not count towards the substantial presence test.54 Exempt individuals are, generally speaking, teachers, students and trainees, and foreign government officials.55 (…) Special rules govern the first and last year of residency and allow an individual to be treated as a resident for part of the year and a nonresident for the remainder of the year. Specifically, residence begins at the time the alien is first present in the US and continues for the remaining portion of that calendar year. Residence ends on the day that the alien leaves the US if the alien at that time has a closer connection to a foreign country than to the US and is not a resident at any time during the next calendar year.57
5.4.2.3 The First Year Election
An alien individual who satisfies neither the permanent residence test (the “green card” test) nor the substantial presence test in a given year may nonetheless be able to elect resident status for that year under certain circumstances. (…)
To make this first year election, the taxpayer: (1) must not be a resident under the other two tests this year, (2) must not have been a resident the year before, (3) must meet the substantial presence test next year, (4) must have been present in the US for at least thirty-one consecutive days in the year of the election, and (5) must be present in the US for 75% of the period beginning with the first day of the thirty-one day consecutive period and ending with the last day of the election year.58 The election, which is made on the individual's tax return, cannot be made until the individual has satisfied the substantial presence test in the following year.59
Footnotes
48 (…)
49 In general, this means that an alien holds a valid “green card” entitling her to unrestricted permanent residence in the United States. Sec. 7701(b)(6); Treas. Reg. Sec. 301.7701(b)-1(b)(1).
50 Treas. Reg. Sec. 301.7701(b)-1(b)(1). Thus an alien who continues to hold a green card after leaving the United States and moving to a foreign country will still be treated as a US resident until steps are taken to formally abandon her US resident status. See Treas. Reg. Sec. 301.7701(b)-1(b)(3) for the steps necessary to obtain a formal determination of abandonment of resident status.
51 Sec. 7701(b)(3)(A).
52 Sec. 7701(b)(3)(B). See Treas. Reg. Sec. 301.7701(b)-2 for the factors to be considered in establishing the “closer connection”. To take advantage of the “closer connection” exception, the taxpayer must file a statement with the IRS detailing the basis for the claim. Absent a properly filed statement, the exception is generally not available. Treas. Reg. Sec. 301.7701(b)-8.
Thus, for example, if an alien was present in the US for 66 days in 2011, 33 days in 2012 and more than 160 days in 2013, she would be resident in the US for 2013 unless she could meet the “closer connection/tax home” test. Under the substantial presence test, an alien can spend up to 121 days each year in the US without being considered a resident.
53 Sec. 7701(b)(7)(A).
54 Sec. 7701(b)(3)(D)(i), 7701(b)(5).
55 Sec. 7701(b)(5).
57 Sec. 7701(b)(2)(A), (B), (C).
58 Sec. 7701(b)(4)(A).
59 Sec. 7701(b)(4)(E).”