The Foreign Earned Income Exclusion



If you meet certain requirements, you may qualify for the foreign earned income and foreign housing exclusions and the foreign housing deduction.

You can use the IRS’s Interactive Tax Assistant tool to help determine whether income earned in a foreign country is eligible to be excluded from income reported on your U.S. federal income tax return.

If you are a U.S. citizen or a resident alien of the United States and you live abroad, you are taxed on your worldwide income. However, you may qualify to exclude from income up to an amount of your foreign earnings that is adjusted annually for inflation ($92,900 for 2011, $95,100 for 2012, $97,600 for 2013, $99,200 for 2014 and $100,800 for 2015). In addition, you can exclude or deduct certain foreign housing amounts.

You may also be entitled to exclude from income the value of meals and lodging provided to you by your employer. 

In order to benefit from the Foreign Earned Income Exclusion, the taxpayer must meet one of the following two criteria:

  • 1) Work full time inside a foreign country for an entire calendar year- known as the Bona Fide Residence Test
  • 2) Work outside of the United States for at least 330 of any 365 day period - known as the Physical Presence Test
While the two criteria may appear to be similar, they are actually quite different in terms of how they apply to your US expat taxes. US Expats automatically become eligible for the exclusion if they have worked overseas throughout an entire calendar year (January 1st-December 31st). They are then considered a bona fide resident. The second clause can be more confusing when applying to Expatriate tax return.
The second clause essentially means that a person left the United States for business and has not returned for more than 35 days throughout the past twelve months. This clause is not based on a calendar year; it simply refers to any twelve month period (ie April to April or September to September). Also note that it makes no reference to consecutive days; so a US Expat would be considered ineligible if he made several 2-7 day trips back to the US that totaled more than 35 days during the twelve month period in question. The key to meeting the "physical presence test" is to have spent less than 35 days in the US during a 12 month period.



The Deductions


 Additionally, you would qualify for the Foreign Housing Deduction as well.
As the name implies, the Foreign Earned Income Exclusion relies solely on foreign income for calculation purposes and the income must be earned. Foreign income from sources such as dividends, interest and rental income are not included since this income is not "earned" in the IRS's view. Additionally, US based income from things such as pensions will not qualify for this exclusion because it was not earned inside a foreign country.



Common Pitfalls


Not foreign earned income: Foreign earned income does not include the following amounts:
  • Pay received as a military or civilian employee of the U.S. Government or any of its agencies
  • Pay for services conducted in international waters (not a foreign country)
  • Pay in specific combat zones, as designated by an Executive Order from the President, that is excludable from income
  • Payments received after the end of the tax year following the year in which the services that earned the income were performed
  • The value of meals and lodging that are excluded from income because it was furnished for the convenience of the employer
  • Pension or annuity payments, including social security benefits

Self-employment income: A qualifying individual may claim the foreign earned income exclusion on foreign earned self-employment income.  The excluded amount will reduce the individual’s regular income tax, but will not reduce the individual’s self-employment tax.  Also, the foreign housing deduction – instead of a foreign housing exclusion – may be claimed.

Figuring the tax: Beginning with tax year 2006, a qualifying individual claiming the foreign earned income exclusion, the housing exclusion, or both, must figure the tax on the remaining non-excluded income using the tax rates that would have applied had the individual not claimed the exclusions.

There are some catches to the Foreign Earned Income Exclusion, so it is almost always advisable to consult a US Expat tax expert about your specific situation. For example, business owners may be forced to pay the Self-Employment tax inside the US and this is not considered part of the Foreign Earned Income Exclusion. However you may still be able to exclude your earnings after you have paid the self employment tax. Another common scenario for the self employed is when US Expats move to countries where there is a Social Security treaty in place with the United States, like the UK. The US / UK treaty allows you to opt out of Social Security and enroll in the UK National Insurance Plan. By opting out of US social security, you could save about 15.3% annually on your US expat taxes

The last thing worth mentioning is that not all US expats are able to take advantage of the foreign earned income exclusion. If you are a US Government Employee and are paid by the US government then you will not be able to use the Foreign Earned Income Exclusion to minimize your US expat taxes. This includes individuals in the Armed Forces Exchange, Commissioned and non-commissioned Officers' messes, Armed Forces motion pictures services and employees of kindergartens on Armed Forces installations.




Other considerations and opportunities that American expatriates should be aware of include the following:

Detailed Explanation of Foreign Earned Income Exclusion

Following are excerpts from IRS Publication 54, Tax Guide for U.S. Citizens and Resident Aliens Abroad. Click here to download the complete publication [1.5 MB]. Below we present the key elements of qualifying for the Foreign Earned Income Exclusion, but you should consult the full publication for a complete explanation.



Who Qualifies for the Exclusions and the Deduction?

If you meet certain requirements, you may qualify for the foreign earned income and foreign housing exclusions and the foreign housing deduction.
If you are a U.S. citizen or a resident alien of the United States and you live abroad, you are taxed on your worldwide income. However, you may qualify to exclude from income up to $97,600 (for 2013) of your foreign earnings. In addition, you can exclude or deduct certain foreign housing amounts.


Requirements

To claim the foreign earned income exclusion, the foreign housing exclusion, or the foreign housing deduction, you must meet all three of the following requirements.
  • Your tax home must be in a foreign country.
  • You must have foreign earned income.
  • You must be either:
    •  A U.S. citizen who is a bona fide resident of a foreign country of countries for an uninterrupted period that includes an entire tax year,
    •  A U.S. resident alien who is a citizen or national of a country with which the United States has an income tax treaty in effect and who is a bona fide resident of a foreign country or countries for an uninterrupted period that includes an entire tax year, or
    •  A U.S. citizen or a U.S. resident alien who is physically present in a foreign country or countries for at least 330 full days during any period of 12 consecutive months.

Tax Home in Foreign Country

To qualify for the foreign earned income exclusion, the foreign housing exclusion, or the foreign housing deduction, your tax home must be in a foreign country throughout your period of bona fide residence or physical presence abroad.

Tax Home

Your tax home is Tothe general area of your main place of business, employment, or post of duty, regardless of where you maintain your family home. Your tax home is the place where you are permanently or indefinitely engaged to work as an employee of self-employed individual. Having a "tax home" in a given location does not necessarily mean that the given location in your residence or domicile for tax purposes.

Temporary or Indefinite Assignment

The location of your tax home often depends on whether your assignment is temporary or indefinite. If you are temporarily absent from your tax home in the United States on business, you may be able to deduct your away-from-home expenses (for travel, meals, and lodging), but you would not qualify for the foreign earned income exclusion. If your new work assignment is for an indefinite period, your your new place of employment becomes your tax home and you would not be able to deduct any of the related expenses that you have in the general area of this new work assignment. If your new tax home is in a foreign country and you meet the other requirements, you earnings may qualify for the foreign earned income exclusion.
Read more on this on an article we did here - 




Bona Fide Residence Test

You meet the bona fide residence test if you are a bona fide resident of a foreign country or countries for an uninterrupted period that includes an entire tax year. You can use the bona fide residence test to qualify for the exclusions and the deduction only if you are either:
  • A U.S. citizen, or
  • A U.S. resident alien who is a citizen or national of a country with which the United States has an income tax treaty in effect.
You do not automatically acquire bona fide resident status merely by living in a foreign country or countries for 1 year. If you go to a foreign country to work on a particular job for a specified period of time, you ordinarily will not be regarded as a bona fide resident of that country even though you work there for 1 tax year or longer. The length of your stay and the nature of your job are only some of the factors to be considered in determining whether you meet the bona fide residence test.
Bona fide residence. To meet the bona fide residence test, you must have established a bona fide residence in a foreign country.
Your bona fide residence is not necessarily the same as your domicile. Your domicile is your permanent home, the place to which you always return or intend to return.
Example. You could have your domicile in Cleveland, Ohio and a bona fide residence in Edinburgh, Scotland, if you intend to return eventually to Cleveland.
The fact that you go to Scotland does not automatically make Scotland your bona fide residence. If you go there as a tourist, or on a short business trip, and return to the United States, you have not established bona fide residence in Scotland. But if you go to Scotland to work for an indefinite or extended period and you set up permanent quarters there for yourself and your family, you probably have established a bona fide residence in a foreign country, even though you intend to return eventually to the United States.
You are clearly not a resident of Scotland in the first instance. However, in the second, you are a resident because your stay in Scotland appears to be permanent. If your residency is not as clearly defined as either of these illustrations, it may be more difficult to decide whether you have established a bona fide residence.
Determination. Questions of bona fide residence are determined according to each individual case, taking into account factors such as your intention, the purpose of your trip, and the nature and length of your stay abroad.
Statement to foreign authorities. You are not considered a bona fide resident of a foreign country if you make a statement to the authorities of that country that you are not a resident of that country, and the authorities:
  • Hold that you are not subject to their income tax laws as a resident, or
  • Have not made a final decision on your status.
Special agreements and treaties. An income tax exemption provided in a treaty or other international agreement will not in itself prevent you from being a bona fide resident of a foreign country. Whether a treaty prevents you from becoming a bona fide resident of a foreign country is determined under all provisions of the treaty, including specific provisions relating to residence or privileges and immunities.
Uninterrupted period including entire tax year. To meet the bona fide residence test, you must reside in a foreign country or countries for an uninterrupted period that includes an entire tax year. An entire tax year is from January 1 through December 31 for taxpayers who file their income tax returns on a calendar year basis. During the period of bona fide residence in a foreign country, you can leave the country for brief or temporary trips back to the United States or elsewhere for vacation or business. To keep you status as a bona fide resident of a foreign country, you must have a clear intention of returning from such trips, without unreasonable delay, to your foreign residence or to a new bona fide residence in another foreign country.
Example 1. You arrived with your family in Lisbon, Portugal, on November 1, 2006. Your assignment is indefinite, and you intend to live there with your family until your company sends you to a new post. You immediately established residence there. You spent April of 2007 at a business conference in the United States. Your family stayed in Lisbon. Immediately following the conference, you returned to Lisbon and continued living there. On January 1, 2008, you completed an uninterrupted period of residence for a full tax year (2007), and you meet the bona fide residence test.
Example 2. Assume the same facts as in Example 1, except that you transferred back to the United States on December 13, 2007. You would not meet the bona fide residence test because your bona fide residence in the foreign country, although it lasted more than a year, did not include a full tax year. You may, however, qualify for the foreign earned income exclusion or the housing exclusion or deduction under the physical presence test (discussed later).
Bona fide resident for part of a year. Once you have established bona fide residence in a foreign country for an uninterrupted period that includes an entire tax year, you are a bona fide resident of that country for the period starting with the date you actually began the residence and ending with the date you abandon the foreign residence. Your period of bona fide residence can include an entire tax year plus parts of 2 other tax years.
Example. You were a bona fide resident of Singapore from March 1, 2006, through September 14, 2008. On September 15, 2008, you returned to the United States. Since you were a bona fide resident of a foreign country for all of 2007, you were also a bona fide resident of a foreign country from March 1, 2006, through the end of 2006 and from January 1, 2008 through September 14, 2008.
Reassignment. If you are assigned from one foreign post to another, you may or may not have a break in foreign residence between your assignments, depending on the circumstances.
Example 1. You were a resident of Pakistan from October 1, 2007, through November 30, 2008. On December 1, 2008, you and your family returned to the United States to wait for an assignment to another foreign country. Your household goods also were returned to the United States. Your foreign residence ended on November 30, 2008, and did not begin again until after you were assigned to another foreign country and physically entered that country. Since you were not a bona fide resident of a foreign country for the entire tax year of 2007 or 2008, you do not meet the bona fide residence test in either year. You may, however, qualify for the foreign earned income exclusion or the housing exclusion or deduction under the physical presence test, discussed later.
Example 2. Assume the same facts as in Example 1, except that upon completion of your assignment in Pakistan you were given a new assignment to Turkey. On December 1, 2008, you and your family returned to the United States for a month's vacation. On January 2, 2009, you arrived in Turkey for your new assignment. Because you did not interrupt your bona fide residence abroad, you meet the bona fide residence test.

Physical Presence Test

You meet the physical presence test if you are physically present in a foreign country or countries 330 full days during a period of 12 consecutive months. The 330 days do not have to be consecutive. Any U.S. citizen or resident alien can use the physical presence to qualify for the exclusions and the deduction.
The physical presence test is based only on how long you stay in a foreign country or countries. This test does not depend on the kind of residence you establish, your intentions about returning, or the nature and purpose of your stay abroad.
330 full days. Generally, to meet the physical presence test, you must be physically present in a foreign country or countries for at least 330 full days during a 12-month period. You can count days you spent abroad for any reason. You do not have to be in a foreign country only for employment purposes. You can be on vacation.
You do not meet the physical presence test if illness, family problems, a vacation, or your employer's orders cause you to be present for less than the required amount of time.
Exception. You can be physically present in a foreign country or countries for less than 330 full days and still meet the physical presence test if you are required to leave a country because of war or civil unrest.
Full day. A full day is a period of 24 consecutive hours, beginning at midnight.
Travel. When you leave the United States to go directly to a foreign country or when you return directly to the United States from a foreign country, the time you spend on or over international waters does not count toward the 330-day total.
Example. You leave the United States for France by air on June 10. You arrive in France at 9:00 a.m. on June 11. Your first full day of physical presence in France is June 12.
Passing over a foreign country. If, in traveling from the United States to a foreign country, you pass over a foreign country before midnight of the day you leave, the first day you can count toward the 330-day total is the day following the day you leave the United States.
Example. You leave the United States by air at 9:30 a.m. on June 10 to travel to Kenya. You pass over western Africa at 11:00p.m. on June 10 and arrive in Kenya at 12:30 a.m. on June 11. Your first full day in a foreign country is June 11.
Change of location. You can move about from one place to another in a foreign country or to another foreign country without losing full days. If any part of your travel is not within any foreign country and takes less than 24 hours, you are considered to be in a foreign country during that part of travel.
Example 1. You leave Ireland by air at 11:00 p.m. on July 6 and arrive in Sweden at 5:00 a.m. on July 7. Your trip takes less than 24 hours and you lose no full days.
Example 2. You leave Norway by ship at 10:00 p.m. on July 6 and arrive in Portugal at 6:00 a.m. on July 8. Since your travel is not within a foreign country or countries and the trip takes more than 24 hours, you lose as full days July 6, 7, and 8. If you remain in Portugal, your next full day in a foreign country is July 9.
In United States while in transit. If you are in transit between two points outside the United States and are physically present in the United States for less than 24 hours, you are not treated as present in the United States during the transit. You are treated as traveling over areas not within any foreign country.
How to figure the 12-month period. There are four rules you should know when figuring the 12-month period.
  • Your 12-month period can begin with any day of the month. It ends the day before the same calendar day, 12 months later.
  • Your 12-month period must be made up of consecutive months. Any 12-month period can be used if the 330 days in a foreign country fall within that period.
  • You do not have to begin your 12-month period with your first full day in a foreign country or end it with the day you leave. You can choose the 12-month period that gives you the greatest exclusion.
  • In determining whether the 12-month period falls within a longer stay in the foreign country, 12-month periods can overlap one another.
Example 1. You are a construction worker who works on and off in a foreign country over a 20-month period. You might pick up the 330 full days in a 12-month period only during the middle months of the time you work in the foreign country because the first fiew and last few months of the 20-month period are broken up by long visits to the United States.
Example 2. You work in New Zealand for a 20-month period from January 1, 2007, though August 31, 2008, except that you spend 28 days in February 2007 and 28 days in February 2008 on vacation in the United States. You are present in New Zealand 330 full days during each of the following two 12-month periods: January 1, 2007 - December 31, 2007 and September 1, 2007 - August 31, 2008. By overlapping the 12-month periods in this way, you meet the physical presence test for the whole 20-month period.

Foreign Earned Income Exclusion

If your tax home is in a foreign country and you meet the bona fide residence test or the physical presence test, you can choose to exclude from your income a limited amount of your foreign earned income.
You can also choose to exclude from your income a foreign housing amount.
If you choose to exclude foreign earned income, you cannot deduct, exclude, or claim a credit for any item that can be allocated to or charged against the excluded amounts. This includes any expenses, losses, or other normally deductible items allocable to the excluded income.




Limit on Excludable Amount

You may be able to exclude up to $97,600 of your foreign earned income in 2013. You cannot exclude more than the smaller of:

  • $97,600, or
  • Your foreign earned income for the tax year minus your foreign housing exclusion.
If both you and your spouse work abroad and each of you meets either the bona fide residence test or the physical presence test, you can each choose the foreign earned income exclusion. You do not both need to meet the same test. Together, you and your spouse can exclude as much as $183,000.
Part-year exclusion. If the period for which you qualify for the foreign earned income exclusion includes only part of the year, you must adjust the maximum limit based on the number of qualifying days in the year. The number of qualifying days is the number of days in the year within the period on which you both:
  • Have your tax home in a foreign country, and
  • Meet either the bona fide residence test or the physical presence test.
For this purpose, you can count as qualifying days all days within a period of 12 consecutive months once you are physically present and have your tax home in a foreign country for 330 full days. To figure your maximum exclusion, multiply the maximum excludable amount for the year by the number of your qualifying days in the year, and then divide the result by the number of days in the year.

Foreign Housing Exclusion and Deduction

In addition to the foreign earned income exclusion, you can also claim an exclusion or a deduction from gross income for your housing amount if your tax home is in a foreign country and you qualify for the exclusions and deduction under either the bona fide residence test or the physical presence test.
The housing exclusion applies only to amounts considered paid for with employer-provided amounts. The housing deduction applies only to amounts paid for with self-employment earnings. 


But the reality is sometimes a situation is not that clear cut and as a result, the FEIE may be denied. 

Here are 2 cases - 





How do you avoid issues? To answer this we need to talk about "tax home" vs "abode".












Your “Tax Home” and Your “Abode”

In order to qualify for any of the benefits, the taxpayer is required to have (among other things) a “tax home” in a foreign country. In defining what is meant by a “tax home” the law provides that the taxpayer shall not be treated as having a “tax home” in a foreign country “for any period for which his abode is within the United States.” What is the difference between one’s “tax home” and one’s “abode”?













Explanation of “Tax Home”

Under the tax rules, one’s tax home” is defined generally as the main place of business, employment, or post of duty, regardless of where the individual maintains his family home. The tax home test focuses on the place of one’s vocation or employment. It is the place where you are permanently or indefinitely engaged to work as an employee or self-employed individual. If you do not have a regular or main place of business because of the nature of your work, your tax home may be the place where you regularly live. If you do not have either a regular or main place of business or a place where you regularly live, you are considered an “itinerant”. In that case, your tax home is wherever you work.













Explanation of One’s “Abode”

A taxpayer is not considered to have a tax home in a foreign country for any period in which the taxpayer’s abode is in the United States. Here is where things can get confusing. One’s “abode” is generally defined to mean one’s home, habitation, residence, domicile, or place of dwelling. According to Pub 54, it is based on where you maintain your family, economic, and personal ties. Your abode is not necessarily in the United States merely because you maintain a dwelling in the United States, whether or not your spouse or dependents use the dwelling. Your abode is also not necessarily in the United States while you are temporarily in the United States; however, these factors can contribute to your having an abode in the United States.




Example 1. You are employed on an offshore oil rig in the territorial waters of a foreign country and work a 28-day on/28-day off schedule. You return to your family residence in the United States during your off periods. You are considered to have an abode in the United States and don’t satisfy the tax home test in the foreign country. You can’t claim either of the exclusions or the housing deduction.




Example 2. For several years, you were a marketing executive with a producer of machine tools in Toledo, Ohio. In November of last year, your employer transferred you to London, England, for a minimum of 18 months to set up a sales operation for Europe. Before you left, you distributed business cards showing your business and home addresses in London. You kept ownership of your home in Toledo but rented it to another family. You placed your car in storage. In November of last year, you moved your spouse, children, furniture, and family pets to a home your employer rented for you in London. Shortly after moving, you leased a car and you and your spouse got British driver’s licenses. Your entire family got library cards for the local public library. You and your spouse opened bank accounts with a London bank and secured consumer credit. You joined a local business league and both you and your spouse became active in the neighborhood civic association and worked with a local charity. Your abode is in London for the time you live there. You satisfy the tax home test in the foreign country.



Unlike the term “tax home”, it does not mean the principal place of business. The location of a taxpayer’s abode often depends on where there is a "closer connection" and where he maintains his economic, family, and personal ties. “Home is where the heart is”, might be a good way for a layman to understand this tax concept of “abode”.













Recent Tax Court Cases

Two recent cases show where the IRS disallowed the Section 911 exclusion because each of the taxpayers maintained an “abode” in the US during the relevant periods.




Joseph S. Bellwood And Jacqueline E. Bellwood v. Commissioner, T.C. Memo 2019-135 (October 7, 2019)




For tax years 2013, 2014 and 2015 the Bellwoods sought to exclude from gross income amounts Mr. Bellwood earned from working in Saudi Arabia for a company that provided air ambulance services. The Tax Court opinion provided that during each of those years Mr. Bellwood “was a full-time employee, based out of Saudi Arabia”. Mr. Bellwood’s employer provided him with housing, initially in a hotel, and later in an apartment. During his employment, Mr. Bellwood was on-duty for 28 days and then off-duty for 28 days. While he was “on duty”, Mr. Bellwood lived in Saudi Arabia, but once the 28 days elapsed he immediately returned to his home in Georgia for 28 days off duty. With little variation, for the three years at issue, this was Mr. Bellwood’s habit with regard to his time in Saudi and time in Georgia. The Tax Court noted that Mr. Bellwood retained his US citizenship, driver’s license, voter registration, bank account, and healthcare in the United States. Furthermore, he generally conducted his affairs indirectly through his Georgia address while he was in Saudi Arabia or directly while in Georgia during his days off duty. Mr. Bellwood was unable to receive mail or make phone calls while he was in Saudi Arabia, and he continually used his Georgia address as his mailing address. It was clear to the court that Mr. Bellwood’s stronger domestic connection was with the Georgia house and not the Saudi Arabian hotel and apartment. During the time Mr. Bellwood spent in Saudi Arabia, his regular activities were primarily vocational. Mr. Bellwood testified that his non-work-related activities in Saudi Arabia were limited because of the demanding nature of his work–he went to the barber or grocery store as needed and visited the occasional restaurant, but most of his time in Saudi Arabia was spent either working or resting and preparing for his next shift. The court stated that all of this was true “only because when Mr. Bellwood had spare time, he did not wish to spend it in Saudi Arabia.” Rather he returned as soon as possible to Georgia and spent his time there on his hobbies, friends and personal matters. In other words, if in determining the location of Mr. Bellwood’s “abode” we look to the adage “home is where the heart is”, all factors point to Georgia. On these facts, the court ruled that Mr. Bellwood maintained his “abode” in the US and the FEIE was denied.




James M. Cambria v. Commissioner, T. C. Summary Opinion 2019-28 (September 30, 2019)

Mr. Cambria’s case involved a single tax year, 2014. Commencing August 5, 2014, Mr. Cambria was employed by a private company to provide security services in Camp Dwyer, Afghanistan. At that time, the entire country of Afghanistan was designated as a combat zone pursuant to an Executive Order. Mr. Cambria went to Camp Dwyer and stayed there for one year, until August 11, 2015. During that year, the Tax Court noted that Mr. Cambria “was not permitted to leave the base for safety reasons. He did not leave Camp Dwyer during his contract except for one trip to the United States from December 12, 2014, through January 1, 2015, for the birth of his child.” Throughout the tax year at issue, Mr. Cambria maintained a Colorado residence where his wife and child lived. He had a Colorado driver’s license, registered and maintained a vehicle in Colorado, had bank and credit card accounts in Colorado and New York, and was registered to vote in New York, where he had resided before moving to Colorado. After his contract ended in August 2015, Mr. Cambria returned to Colorado and began taking college classes, and was eventually employed by a Police Department in Colorado. The Tax Court noted that he had not shown any connection with Afghanistan other than the location of his employment. He “did not own land or vehicles in Afghanistan, he did not maintain a bank account there, and he did not want to bring his family with him……[he] had ties to Afghanistan that were severely limited and transitory during the year at issue.” Based on the facts, Mr. Cambria maintained his “abode” in the US and the FEIE was denied.






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