Tax Topic #851 |
2008 Tax Year |
Topic 851 - Resident and Non–Resident Aliens
Since resident and nonresident aliens are taxed differently, it is important
for you to determine your status. You are considered a nonresident alien for
any period that you are neither a United States citizen nor a United States
resident alien.
You are considered a resident alien if you met one of two tests for the
calendar year.
The first test is the "green card test." If at any time during the calendar
year you were a lawful permanent resident of the United States according to
the immigration laws, and this status has not been rescinded or administratively
or judicially determined to have been abandoned, you are considered to have
met the green card test.
The second test is the "substantial presence test". For the purposes of
this test, the term United Stated includes the following areas:
- All 50 states and the District of Columbia.
- The territorial waters of the United States.
- The seabed and subsoil of those submarine areas that are adjacent to U.S.
territorial waters and over which the United States has exclusive rights under
international law to explore and exploit natural resources.
The term does not include U.S. possessions and territories or U.S. airspace.
To meet the substantial presence test, you must have been physically present
in the United States on at least 31 days during the current year, and 183
days during the 3 year period that includes the current year and the 2 years
immediately before. To satisfy the 183 days requirement, count all of the
days you were present in the current year, and one–third of the days
you were present in the first year before the current year, and one–sixth
of the days you were present in the second year before the current year.
Do not count the following days of presence in the United States for the
substantial presence test:
- Days you commute to work in the United States from a residence in Canada
or Mexico if you regularly commute from Canada or Mexico. You are considered
to commute regularly if you commute to work in the United States on more than
75% of the workdays during your working period.
- Days you are in the United States for less than 24 hours when you are
in transit between two places outside the United States.
- Days you are in the United States as a crew member of a foreign vessel
engaged in transportation between the United States and a foreign country
or a U.S. possession. However, this exception does not apply if you otherwise
engage in any trade or business in the United States on those days.
- Days you intend to leave, but could not leave the United States because
of a medical condition or problem that arose while you were in the United
States. Whether you intended to leave the United States on a particular day
is determined based on all the facts and circumstances.
- Days you are an exempt individual.
An exempt individual may be anyone in the following categories:
- An individual temporarily present in the United States as a foreign government–related
individual,
- A teacher or trainee temporarily present in the United States with a J
or Q visa who substantially complies with the requirements of the visa,
- A student temporarily present in the United States with an F, J, M, or
Q visa who substantially complies with the requirements of the visa; or
- A professional athlete temporarily present to compete in a charitable
sports event.
Even if you meet the substantial presence test, you can be treated as a
nonresident alien if you are present in the United States for fewer than 183
days during the current calendar year, you maintain a tax home in a foreign
country during the year, and you have a closer connection to that country
than to the United States. This does not apply if you have applied for status
as a lawful permanent resident of the United States, or you have an application
pending for adjustment of status. Sometimes, a tax treaty between the United
States and another country will provide special rules for determining residency
for purposes of the treaty. An alien whose status changes during the year
from resident to nonresident, or vice versa, generally has a dual status for
that year, and is taxed on the income for the two periods under the provisions
of the law that apply to each period.
If you are a nonresident alien, you must file Form 1040NR (PDF) or Form 1040NR-EZ (PDF) if you are engaged in a trade or business in the United States,
or have any other U.S. source income on which the tax was not fully paid by
the amount withheld. If you had wages subject to income tax withholding, the
return is due by April 15, provided you file on a calendar–year basis.
If the due date falls on a Saturday, Sunday, or legal holiday, the due date
is delayed until the next business day. If you did not have wages subject
to withholding and file on a calendar–year basis, you are required to
file your return by June 15th. If the due date falls on a Saturday, Sunday,
or legal holiday, the due date is delayed until the next business day. File
Form 1040NR or Form 1040NR–EZ with the Internal Revenue Service Center,
Austin, TX 73301-0215.
If you are a resident alien, you must follow the same tax laws as U.S.
citizens. You are taxed on income from all sources, both within and outside
the United States. You will file Form 1040EZ (PDF), Form 1040A (PDF), or Form 1040 (PDF) depending
on your tax situation. The return is due by April 15, and should be filed
with the service center for your area. If the due date falls on a Saturday,
Sunday, or legal holiday, the due date is delayed until the next business
day.
For more information refer to Publication 519, U.S. Tax Guide for
Aliens. If the tax information you need relating to this topic is not
addressed in Publication 519, you may call the IRS International Tax Law hotline.
The number is 215 516–2000. This is not a toll–free number.
Page Last Reviewed or Updated: December 22, 2008
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