LumenIf I arrive in the US late in the year, can I choose to be a tax resident from my arrival date?
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Yes, if you weren't a US resident last year, you meet the substantial presence test next year, and this year you are present 31 days in a row and at least 75% of the days from then to 31 December (up to 5 absent days count as present). You make the choice on your return after meeting next year's test.
Key facts
| What | The law says | Source |
|---|---|---|
| Who can choose | Someone not resident (by green card or substantial presence) in the election year, not resident in the year before, and resident under the substantial presence test the year after | 26 U.S.C. 7701(b)(4)(A)(i)–(iii) |
| Presence needed in the election year | At least 31 consecutive days, and at least 75% of the days from the first of those 31 days to 31 December | 26 U.S.C. 7701(b)(4)(A)(iv) |
| Absences | Up to 5 days of absence in total can be treated as days present for the 75% rule | 26 U.S.C. 7701(b)(4)(A)(iv)(II) |
| When residence begins | The first day of the earliest 31-day period that qualifies | 26 U.S.C. 7701(b)(4)(C) |
| When you can make it | On your return for the election year, but not before you meet the substantial presence test for the following year | 26 U.S.C. 7701(b)(4)(E) |
| Undoing it | Only with IRS consent | 26 U.S.C. 7701(b)(4)(F); Publication 519 |
| Marriage | Not required | Publication 519, First-Year Choice |
Who it’s for
The law gives this choice to people who arrive too late in a year to meet the substantial presence test for that year, but who will meet it the next year. Without it, you are a nonresident for the whole arrival year. With it, you are a resident from the start of your first qualifying 31-day stay. Days that don’t count for the substantial presence test (for example, days as an exempt individual) also don’t count here.
The IRS’s example in Publication 519: someone present from 1 November to 1 December, absent until 17 December and then present to the end of the year has 46 days present out of the 61 days from 1 November to 31 December, which is 75.4%, so they can make the choice with a starting date of 1 November.
How to make the choice
Publication 519 says you attach a statement to Form 1040 or 1040-SR saying that you make the first-year choice, that you were not a resident the year before, that you are a resident under the substantial presence test in the following year, the number of days present in that following year, the dates of your 31-day period and continuous presence, and any absence dates you treat as presence.
You can’t file it until you meet the test for the following year. Publication 519 says that if you haven’t met it by 15 April, you can file Form 4868 to extend to 15 October, and you should pay with the extension the tax you expect to owe figured as if you were a nonresident for the whole year; unpaid tax is charged interest from the regular due date. If you don’t follow these procedures, you are treated as a nonresident for the whole year.
Related questions
- Married people have a separate option: a dual-status spouse married to a US citizen or resident at year end can, with the spouse, choose to be treated as a resident for the entire year and file jointly (Publication 519, Choosing Resident Alien Status).
Sources
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This is general information, not legal advice, and Lumen is not a law firm. Rules change and offices differ: check the official sources above before you act. Found something wrong or out of date? Write to support@lumen.observer.