Substantial Presence Test Question

[K + M 47]

Hi VJ!

 

It's that time of year again, was getting all the documents together when something ran across my mind.  My wife who is from the UK before we were married, before she even had her K-1, first came to see me in the USA in the summer of 2018 for roughly 5 weeks, she came over on the Visa Waiver Program.  I never thought anything about it, but I saw this about the substantial presence test -

 

 

You will be considered a United States resident for tax purposes if you meet the substantial presence test for the calendar year. To meet this test, you must be physically present in the United States (U.S.) on at least:

1. 31 days during the current year

 

Do we need to somehow backfile taxes or something for her in 2018?  She did not earn any money, did not work, just visited.  Are individuals who come over on the VWP exempt from SPT?

 

Also - I visited her family in the United Kingdom also in 2018 for roughly four months, same scenario as her, did not work, did not earn any income in the UK, is there anything I need to do for that year also?  

 

Thanks in advance!

[Coco8 1,042]

No, she doesn't need to file taxes for that time. She was just visiting. 

 

To become a TAX resident you need to have been in the US for almost 200 days for like 3 years and the 31 day rule is for the current year once you are a tax resident (like a rule to whether you have to submit taxes again).

Edited February 10, 2021 by Coco8

[HRQX 4,145]

23 minutes ago, Kerri and Myles said:

Are individuals who come over on the VWP exempt from SPT?

VWP visitors are not exempt* but 5 weeks is still less than 183 days. So she doesn't have to file taxes for that year.

 

*Only the following are exempt individuals:

• An individual temporarily present in the U.S. as a foreign government-related individual under an “A” or “G” visa, other than individuals holding “A-3” or “G-5” class visas.
• A teacher or trainee temporarily present in the U.S. under a "J" or "Q" visa, who substantially complies with the requirements of the visa.
• A student temporarily present in the U.S. under an "F," "J," "M," or "Q" visa, who substantially complies with the requirements of the visa.
• A professional athlete temporarily in the U.S. to compete in a charitable sports event.

[K + M 47]

2 hours ago, Coco8 said:

No, she doesn't need to file taxes for that time. She was just visiting. 

 

To become a TAX resident you need to have been in the US for almost 200 days for like 3 years and the 31 day rule is for the current year once you are a tax resident (like a rule to whether you have to submit taxes again).

 

1 hour ago, HRQX said:

VWP visitors are not exempt* but 5 weeks is still less than 183 days. So she doesn't have to file taxes for that year.

 

*Only the following are exempt individuals:

• An individual temporarily present in the U.S. as a foreign government-related individual under an “A” or “G” visa, other than individuals holding “A-3” or “G-5” class visas.
• A teacher or trainee temporarily present in the U.S. under a "J" or "Q" visa, who substantially complies with the requirements of the visa.
• A student temporarily present in the U.S. under an "F," "J," "M," or "Q" visa, who substantially complies with the requirements of the visa.
• A professional athlete temporarily in the U.S. to compete in a charitable sports event.

Ahh alright so if I am understanding it correctly it first goes you have to be in the US for 183 days within 3 years, then following that if you are here for the 31 days then that rule would help you figure out if you need to continue to file? All this being pre green card of course.

[Coco8 1,042]

7 minutes ago, Kerri and Myles said:

 

Ahh alright so if I am understanding it correctly it first goes you have to be in the US for 183 days within 3 years, then following that if you are here for the 31 days then that rule would help you figure out if you need to continue to file? All this being pre green card of course.

 

Yep. When I moved to the US as a grad student, it took a while for me to become a "tax" resident. So the first time I filed taxes it was like a special process, because I wasn't a resident yet, even though I had been in the US from September to December.  I had to file taxes because I had a fellowship so I was getting paid.

 

Edit: Also, I had to file my taxes in paper for 3 years and couldn't use turbo tax until 4th year because I was in the "tax residency" limbo situation.

Edited February 10, 2021 by Coco8

[K + M 47]

3 hours ago, Coco8 said:

 

Yep. When I moved to the US as a grad student, it took a while for me to become a "tax" resident. So the first time I filed taxes it was like a special process, because I wasn't a resident yet, even though I had been in the US from September to December.  I had to file taxes because I had a fellowship so I was getting paid.

 

Edit: Also, I had to file my taxes in paper for 3 years and couldn't use turbo tax until 4th year because I was in the "tax residency" limbo situation.

We weren't able to efile last year I forget all the specifics but the wife had foreign income so had to deal with that, but there wouldn't be any reason why my tax guy wouldn't be able to efile for us this year right? No foreign income now.

[Coco8 1,042]

5 minutes ago, Kerri and Myles said:

We weren't able to efile last year I forget all the specifics but the wife had foreign income so had to deal with that, but there wouldn't be any reason why my tax guy wouldn't be able to efile for us this year right? No foreign income now.

When she is here and you are married, you would file jointly.

[Wuozopo 4,293]

@Kerri and Myles

 

She is not required to file any year that she did not earn US income. It is an income tax, so no income means no tax and no filing.

 

She may file jointly with you any year in which you are married even if she had no US income. That’s what you chose for 2019. When you chose to file a joint return, all income for both had to be reported including what she earned in the UK. The foreign earned income can be excluded, which you did. She was present in the US more than 183 days in 2019 so she qualified to be a resident alien for tax purposes. There was really no reason to file a paper return. 
 

For 2020, your joint return will be just a regular return you can efile. 

[K + M 47]

1 hour ago, Wuozopo said:

@Kerri and Myles

 

She is not required to file any year that she did not earn US income. It is an income tax, so no income means no tax and no filing.

 

She may file jointly with you any year in which you are married even if she had no US income. That’s what you chose for 2019. When you chose to file a joint return, all income for both had to be reported including what she earned in the UK. The foreign earned income can be excluded, which you did. She was present in the US more than 183 days in 2019 so she qualified to be a resident alien for tax purposes. There was really no reason to file a paper return. 
 

For 2020, your joint return will be just a regular return you can efile. 

 

16 hours ago, Coco8 said:

When she is here and you are married, you would file jointly.

Awesome, thank you so much for clarifying everything up.