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Code §911 Foreign Earned Income Exclusion Update

2010-02-05

Code § 911(a) allows a “qualified individual” to exclude foreign earned income and housing cost amounts from gross income, typically referred to as the “foreign earned income exclusion.”  Code § §911(d)(1) defines the term “qualified individual” as an individual whose tax home is in a foreign country and who is:

(A) a citizen of the United States and establishes to the satisfaction of the Secretary of the Treasury that the individual has been a bona fide resident of a foreign country or countries for an uninterrupted period that includes an entire taxable year, or

(B) a citizen or resident of the United States who, during any period of 12 consecutive months, is present in a foreign country or countries during at least 330 full days.

Code § 911(d)(4) provides an exception to the eligibility requirements of Code § 911(d)(1) if the individual left the country during a period for which the Secretary of the Treasury, after consultation with the Secretary of State, determines that individuals were required to leave because of war, civil unrest, or similar adverse conditions that precluded the normal conduct of business.

Today Revenue Procedure 2010-17 announced that Madagascar (after March 18, 2009) and Guinea (after October 1, 2009) are the only two countries for 2009 where it was determined that war, civil unrest, or similar adverse conditions precluded the normal conduct of business.

Accordingly, for purposes of Code § 911, an individual who left Madagascar or Guinea on or after the specified dates during 2009 will be treated as a qualified individual with respect to the period during which that individual was present in, or was a bona fide resident of, such foreign country.  However, to meet this exception, the individual must also establish that but for those conditions the individual could reasonably have been expected to meet the eligibility requirements.

Revenue Procedures applying this exception for prior years include:  Rev. Proc. 2004-17, Rev. Proc. 2006-28, and Rev. Proc. 2009-22.

Tags: 911 Adverse Conditions, 911 Foreign Earned Income Exclusion