The Foreign Earned Income Tax Exclusion

The Residence Test

In order for US expats to qualify for the Foreign Earned Income Exclusion, they are required to meet one of two criteria:

1. Work full-time inside a foreign country for an entire calendar year — known as the Bona Fide Resident Test
2. Work outside of the United States for at least 330 of any 365-day period — know as the Physical Presence Test

While each of these statements may appear to be similar, they are actually quite different. They are different due to the terms of how they would apply to your US expat taxes. US expats 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 a bit more confusing when applying it to your 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 12 months. This clause in not based on a calendar year; it simply refers to any 12-month period (like April to April or September to September). Also note that it makes no reference to consecutive day. An 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 12-month period in question. The key to meeting the Physical Presence Test is to have spent 330 days physically present in a foreign country.

The Deductions

If a person meets either of the above conditions, then they are allowed to exclude up to $92,900 of their foreign earned income from their US expat taxes. If you are married filing jointly, you would be able to deduct up to $185,800 from your US expat taxes for the 2011 tax year. This amount is also indexed for inflation and increases each year. Additionally, you would qualify for the foreign housing deduction.

As the name implies, the Foreign Earned Income Exclusion relies solely on foreign earned income. 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 Problems

Per usual with the IRS, there are some catches with the Foreign Earned Income Exclusion. A good start is 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. This is not considered part of the Foreign Earned Income Exclusion . 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% annually on your US expat taxes!

Expats can also be taxed inside the United States in some situations even if they are a resident of a foreign country and worked well under 35 days inside the US. For example, let’s say that you fly to New York for two weeks to visit some friends. You have an employer who allows you to work outside the office. Due to this, you decide to work a few days from your hotel room. When it comes time to file your US expat taxes with the IRS at the end of the year, you would be responsible for paying US taxes for the income you earned working inside the US. This is the case even if your employer is in a foreign country and you only spent 14 days total inside the United States the entire year. This would, in all likelihood, then need to be offset on your local country taxes.

The last thing to remember 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, 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.

Need assistance with your US expat taxes? Protax Consulting offers professional tax services for US expats. Contact us!