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Substantial Presence Test

Substantial Presence Test Overview

Determination Criteria: The Substantial Presence Test, as delineated in Internal Revenue Code (IRC) Section 7701(b)(3), requires individuals to be physically present in the United States for at least 31 days in the current year. Additionally, the cumulative total of the following must be 183 days or more:

  • 100% of the days present in the current year,

  • 1/3 of the days present in the previous year,

  • 1/6 of the days present in the year before last.

Summary: To determine the Substantial Presence Test, consider the total days of presence in the current year and fractional days from the preceding two years. Note that any portion of a day counts as a whole day. While fractions aggregate, leftover fractions are discarded rather than rounded.

Annual Compliance: This test must be satisfied annually for an individual to retain their status as a U.S. resident alien.

Residency Start Date: Individuals who were not U.S. residents in the previous year and who satisfy the Substantial Presence Test, will have their residency status begin from the first day of their U.S. arrival in the qualifying year. IRC sections 7701(b)(C)(ii) allow exclusion of up to 10 minimal presence days, assuming a foreign tax home and stronger connection to a foreign country.

Excludable Days: Certain days can be excluded from the test under specific conditions such as:

  • Exempt Individuals: These include students on F, M, J, or Q visas, teachers or trainees on J or Q visas, professional athletes, or those with medical conditions as specified under IRC Sec 7701(b)(3)(D) and 7701(b)(5)(A-D).

  • Other Exceptions: Regular commuters from Canada or Mexico, those in transit for less than 24 hours, crew members of foreign vessels, and international organization employees as per IRC Sec 7701(b)(7).

Exempt Individual Rule Exceptions:

  1. Teachers and Trainees:

    • Using a J or Q visa who were exempt for part of two of the last six calendar years, can't exclude days in the current year unless:

      1. Exempt for part of three or fewer of the last six calendar years.

      2. Compensated by a foreign employer in the current year.

      3. Present as a teacher/trainee in any of the prior six years.

      4. Compensation was from a foreign employer during these years.

  2. Students:

    • Those on F, J, M, or Q visas, who’ve been exempt as teachers/trainees for part of more than five years, must prove no intent for permanent U.S. residence to exclude days. This includes:

      1. Maintaining a stronger connection to a foreign country.

      2. Taking steps to change from nonimmigrant to lawful permanent resident.

Conclusion: Understanding the precise application of the Substantial Presence Test is critical for ensuring compliance with U.S. residency regulations. Each individual’s scenario may vary, making professional guidance crucial for accurate tax positioning.

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