Substantial Presence Test

[Dante1970 0]

Hi guys,

 

I have a question about exemptions regarding the Substantial Presence Test. I have read about who is considered exempt for the SPT (certain visa holders, etc.) but can find nothing about being in the US as a tourist (ESTA). I spent time in the US in 2022 and 2023 visiting my then-girlfriend/fiancée, but since I was only in the US temporarily on an ESTA, I assume the days I was in the US count as zero for the SPT. Am I correct? We are married now, and I want to make sure I file the correct tax forms. (Resident or Non-Resident.) Thanks for your input.  

Edited Monday at 08:57 PM by Dante1970

[OldUser 7,910]

38 minutes ago, Dante1970 said:

Hi guys,

 

I have a question about exemptions regarding the Substantial Presence Test. I have read about who is considered exempt for the SPT (certain visa holders, etc.) but can find nothing about being in the US as a tourist (ESTA). I spent time in the US in 2022 and 2023 visiting my then-girlfriend/fiancée, but since I was only in the US temporarily on an ESTA, I assume the days I was in the US count as zero for the SPT. 

No... Not zero.

 

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, and
2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
   • All the days you were present in the current year, and
   • 1/3 of the days you were present in the first year before the current year, and
   • 1/6 of the days you were present in the second year before the current year.

Source: https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

[EatBulaga 408]

41 minutes ago, Dante1970 said:

Hi guys,

 

I have a question about exemptions regarding the Substantial Presence Test. I have read about who is considered exempt for the SPT (certain visa holders, etc.) but can find nothing about being in the US as a tourist (ESTA). I spent time in the US in 2022 and 2023 visiting my then-girlfriend/fiancée, but since I was only in the US temporarily on an ESTA, I assume the days I was in the US count as zero for the SPT. Am I correct? We are married now, and I want to make sure I file the correct tax forms. (Resident or Non-Resident.) Thanks for your input.  

 

Did you have US work income as a tourist ESTA?

[OldUser 7,910]

1 minute ago, EatBulaga said:

 

Did you have US work income as a tourist ESTA?

Work is illegal under ESTA. It doesn't matter where income was made. If OP is a tax resident in the US, tax will be paid on worldwide income.

 

Yes, tourists who spend too much time in the US routinely become tax residents in the US even if they never work in the US and make money elsewhere.

Edited Monday at 09:40 PM by OldUser

[Dante1970 0]

Thank you for the responses. I am aware of the SPT rules regarding the number of days spent in the US for the most recent three years, but I am asking about exemptions. Are visitors who spend time in the US as tourists exempt from the SPT calculations? 

 

No, I did not work while in the US on an ESTA. I know that is not allowed. I was only in the US in 2022 and 2023 for a couple of months because ESTA rules restrict visits to 90 days. 

[Dante1970 0]

(Reworded from above) Thank you for the responses. I am aware of the SPT rules regarding the number of days spent in the US for the most recent three years, but I am asking about exemptions. Should days spent in the US as a tourist on an ESTA be included in SPT calculations? 

 

No, I did not work while in the US on an ESTA. I know that is not allowed. I was only in the US in 2022 and 2023 for a couple of months because ESTA rules restrict visits to 90 days. 

[OldUser 7,910]

25 minutes ago, Dante1970 said:

Should days spent in the US as a tourist on an ESTA be included in SPT calculations? 

Yes. Any time you were in the US physically is counted for SPT. Even if on ESTA. Even on tourist visa. Even if without legal status.

[P055UM 289]

I think the exemption you are speaking of is the Closer Connection rule. This is how tourists (who remain tourists) can avoid US tax residency even if they spend a lot of time here.

 

Unfortunately it would not apply to you, as I see you have a pending AoS and have therefore taken steps towards permanent residency. 
 

https://www.irs.gov/individuals/international-taxpayers/closer-connection-exception-to-the-substantial-presence-test

[Dante1970 0]

Thank you! That was very helpful.