dual status taxpayersA U.S. taxpayer can be both a nonresident alien and a resident alien during the same tax year. This usually happens when a person, who is not a U.S. citizen, first arrives in the U.S. or in the year that this person departs from the US.

A Dual-Status year requires filing U.S. Income Tax Returns, as both a Part-Year Resident and as a Part-Year Non-Resident.

How do you determine your filing status for your first year of Residency?

If you are a U.S. resident during a calendar year, but were not a U.S. resident at any time during the preceding calendar year, you are treated as a U.S. resident only for the part of the year that begins on your residency starting date.

You are a U.S. nonresident alien for the part of the year before that date.

How is your residency starting date determined?

This is not a simple determination.

If you meet the Substantial Presence Test, your residency starting date is generally the first day that you are actually present in the US.

The Substantial Presence Test is basically a 183 day of presence in the U.S. test. However, it is a cumulative test. If one is physically present in the U.S. for at least 31 days in the current year, and the sum of the days in the current year, plus 1/3 of the days physically present in the U.S. during the first preceding year, plus 1/6 of the days present in the second preceding year exceeds 183 days, then you are considered a resident.

If you meet the Green Card Test at any time during the calendar year,  but do not meet the Substantial Presence Test for that year, your residency starting date is the first day in that year on which you are present in the U.S. as a lawful permanent resident.

You meet the Green Card Test If you have been granted the privilege, according to immigration laws of residing permanently in the U.S. as an immigrant, you will be issued an alien registration card, also known as a Green Card.  As long as you hold a Green Card, you are required to file U.S. tax returns as a resident.

Choosing Resident Alien Status

When you are a dual-status alien, there are certain circumstances where you can choose to be treated as a U.S. resident for the entire year. You must meet all of the following:

  • Be a non-resident at the beginning of the year
  • Be a resident alien or citizen at the end of the year
  • Be married to a U.S. citizen or resident alien
  • Your spouse joins you in making the choice

You cannot make this choice if you are single.

You must attach a statement, signed by both spouses to your joint return for the year you are making this choice.

If you make this choice, both you and your spouse must file a joint return and are both taxed on worldwide income.

Last Year of Residency

If you were a U.S. resident in the current year of taxation, but are not a U.S. resident during any part of the current filing year, you cease to be a resident on your residency termination date.  

The termination date is December 31 of the year of taxation, unless you qualify for one of the exceptions for an earlier termination date.

The rules for determining filing status for your first year of residency and your last year of residency are quite complicated.  

Need assistance with a dual status tax return? At Freed Maxick, our tax services team can help you to assimilate these rules and determine what would be the best filing status for you, contact us here.