Table of Contents
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Who qualifies for the foreign earned income exclusion, the foreign housing exclusion, and the foreign housing deduction,
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The requirements that must be met to claim either exclusion or the deduction,
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How to figure the foreign earned income exclusion, and
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How to figure the foreign housing exclusion and the foreign housing deduction.
Publication
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519 U.S. Tax Guide for Aliens
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570 Tax Guide for Individuals With Income from U.S. Possessions
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596 Earned Income Credit (EIC)
Form (and Instructions)
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1040X Amended U.S. Individual Income Tax Return
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2555 Foreign Earned Income
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2555-EZ Foreign Earned Income Exclusion
See chapter 7 for information about getting these publications and forms.
If you meet certain requirements, you may qualify for the foreign earned income and foreign housing exclusions and the foreign housing deduction.
If you are a U.S. citizen or a resident alien of the United States and you live abroad, you are taxed on your worldwide income. However, you may qualify to exclude from income up to $87,600 of your foreign earnings. In addition, you can exclude or deduct certain foreign housing amounts. See Foreign Earned Income Exclusion and Foreign Housing Exclusion and Deduction, later.
You may also be entitled to exclude from income the value of meals and lodging provided to you by your employer. See Exclusion of Meals and Lodging, later.
To claim the foreign earned income exclusion, the foreign housing exclusion, or the foreign housing deduction, you must meet all three of the following requirements.
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Your tax home must be in a foreign country.
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You must have foreign earned income.
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You must be either:
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A U.S. citizen who is a bona fide resident of a foreign country or countries for an uninterrupted period that includes an entire tax year,
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A U.S. resident alien who is a citizen or national of a country with which the United States has an income tax treaty in effect and who is a bona fide resident of a foreign country or countries for an uninterrupted period that includes an entire tax year, or
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A U.S. citizen or a U.S. resident alien who is physically present in a foreign country or countries for at least 330 full days during any period of 12 consecutive months.
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See Publication 519 to find out if you are a U.S. resident alien for tax purposes and whether you keep that alien status when you temporarily work abroad.
If you are a nonresident alien married to a U.S. citizen or resident alien, and both you and your spouse choose to treat you as a resident alien, you are a resident alien for tax purposes. For information on making the choice, see the discussion in chapter 1 under Nonresident Alien Spouse Treated as a Resident.
To qualify for the foreign earned income exclusion, the foreign housing exclusion, or the foreign housing deduction, your tax home must be in a foreign country throughout your period of bona fide residence or physical presence abroad. Bona fide residence and physical presence are explained later.
Your tax home is the general area of your main place of business, employment, or post of duty, regardless of where you maintain your family home. Your tax home is the place where you are permanently or indefinitely engaged to work as an employee or self-employed individual. Having a “tax home” in a given location does not necessarily mean that the given location is your residence or domicile for tax purposes.
If you do not have a regular or main place of business because of the nature of your work, your tax home may be the place where you regularly live. If you have neither a regular or main place of business nor a place where you regularly live, you are considered an itinerant and your tax home is wherever you work.
You are not considered to have a tax home in a foreign country for any period in which your abode is in the United States. However, your abode is not necessarily in the United States while you are temporarily in the United States. Your abode is also not necessarily in the United States merely because you maintain a dwelling in the United States, whether or not your spouse or dependents use the dwelling.
“Abode” has been variously defined as one's home, habitation, residence, domicile, or place of dwelling. It does not mean your principal place of business. “Abode” has a domestic rather than a vocational meaning and does not mean the same as “tax home.” The location of your abode often will depend on where you maintain your economic, family, and personal ties.
Example 1.
You are employed on an offshore oil rig in the territorial waters of a foreign country and work a 28-day on/28-day off schedule. You return to your family residence in the United States during your off periods. You are considered to have an abode in the United States and do not satisfy the tax home test in the foreign country. You cannot claim either of the exclusions or the housing deduction.
Example 2.
For several years, you were a marketing executive with a producer of machine tools in Toledo, Ohio. In November of last year, your employer transferred you to London, England, for a minimum of 18 months to set up a sales operation for Europe. Before you left, you distributed business cards showing your business and home addresses in London. You kept ownership of your home in Toledo but rented it to another family. You placed your car in storage. In November of last year, you moved your spouse, children, furniture, and family pets to a home your employer rented for you in London.
Shortly after moving, you leased a car and you and your spouse got British driving licenses. Your entire family got library cards for the local public library. You and your spouse opened bank accounts with a London bank and secured consumer credit. You joined a local business league and both you and your spouse became active in the neighborhood civic association and worked with a local charity. Your abode is in London for the time you live there. You satisfy the tax home test in the foreign country.
The location of your tax home often depends on whether your assignment is temporary or indefinite. If you are temporarily absent from your tax home in the United States on business, you may be able to deduct your away-from-home expenses (for travel, meals, and lodging), but you would not qualify for the foreign earned income exclusion. If your new work assignment is for an indefinite period, your new place of employment becomes your tax home and you would not be able to deduct any of the related expenses that you have in the general area of this new work assignment. If your new tax home is in a foreign country and you meet the other requirements, your earnings may qualify for the foreign earned income exclusion.
If you expect your employment away from home in a single location to last, and it does last, for 1 year or less, it is temporary unless facts and circumstances indicate otherwise.
If you expect it to last for more than 1 year, it is indefinite.
If you expect it to last for 1 year or less, but at some later date you expect it to last longer than 1 year, it is temporary (in the absence of facts and circumstances indicating otherwise) until your expectation changes. Once your expectation changes, it is indefinite.
To meet the bona fide residence test or the physical presence test, you must live in or be present in a foreign country. A foreign country includes any territory under the sovereignty of a government other than that of the United States.
The term “foreign country” includes the country's airspace and territorial waters. It also includes the seabed and subsoil of those submarine areas adjacent to the country's territorial waters over which it has exclusive rights under international law to explore and exploit the natural resources.
The term “foreign country” does not include Antarctica or U.S. possessions such as Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, the U.S. Virgin Islands, and Johnston Island. For purposes of the foreign earned income exclusion, the foreign housing exclusion, and the foreign housing deduction, the terms “foreign,” “abroad,” and “overseas” refer to areas outside the United States and those areas listed or described in the previous sentence.
Residence or presence in a U.S. possession does not qualify you for the foreign earned income exclusion. You may, however, qualify for an exclusion of your possession income on your U.S. return.
Residents of Puerto Rico and the U.S. Virgin Islands cannot claim the foreign earned income exclusion or the foreign housing exclusion.
You meet the bona fide residence test if you are a bona fide resident of a foreign country or countries for an uninterrupted period that includes an entire tax year. You can use the bona fide residence test to qualify for the exclusions and the deduction only if you are either:
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A U.S. citizen, or
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A U.S. resident alien who is a citizen or national of a country with which the United States has an income tax treaty in effect.
You do not automatically acquire bona fide resident status merely by living in a foreign country or countries for 1 year. If you go to a foreign country to work on a particular job for a specified period of time, you ordinarily will not be regarded as a bona fide resident of that country even though you work there for 1 tax year or longer. The length of your stay and the nature of your job are only some of the factors to be considered in determining whether you meet the bona fide residence test.
Example.
You could have your domicile in Cleveland, Ohio, and a bona fide residence in Edinburgh, Scotland, if you intend to return eventually to Cleveland.
The fact that you go to Scotland does not automatically make Scotland your bona fide residence. If you go there as a tourist, or on a short business trip, and return to the United States, you have not established bona fide residence in Scotland. But if you go to Scotland to work for an indefinite or extended period and you set up permanent quarters there for yourself and your family, you probably have established a bona fide residence in a foreign country, even though you intend to return eventually to the United States.
You are clearly not a resident of Scotland in the first instance. However, in the second, you are a resident because your stay in Scotland appears to be permanent. If your residency is not as clearly defined as either of these illustrations, it may be more difficult to decide whether you have established a bona fide residence.
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Hold that you are not subject to their income tax laws as a resident, or
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Have not made a final decision on your status.
Example 1.
You are a U.S. citizen employed in the United Kingdom by a U.S. employer under contract with the U.S. Armed Forces. You are not subject to the North Atlantic Treaty Status of Forces Agreement. You may be a bona fide resident of the United Kingdom.
Example 2.
You are a U.S. citizen in the United Kingdom who qualifies as an “employee” of an armed service or as a member of a “civilian component” under the North Atlantic Treaty Status of Forces Agreement. You are not a bona fide resident of the United Kingdom.
Example 3.
You are a U.S. citizen employed in Japan by a U.S. employer under contract with the U.S. Armed Forces. You are subject to the agreement of the Treaty of Mutual Cooperation and Security between the United States and Japan. Being subject to the agreement does not make you a bona fide resident of Japan.
Example 1.
You arrived with your family in Lisbon, Portugal, on November 1, 2006. Your assignment is indefinite, and you intend to live there with your family until your company sends you to a new post. You immediately established residence there. You spent April of 2007 at a business conference in the United States. Your family stayed in Lisbon. Immediately following the conference, you returned to Lisbon and continued living there. On January 1, 2008, you completed an uninterrupted period of residence for a full tax year (2007), and you meet the bona fide residence test.
Example 2.
Assume the same facts as in Example 1, except that you transferred back to the United States on December 13, 2007. You would not meet the bona fide residence test because your bona fide residence in the foreign country, although it lasted more than a year, did not include a full tax year. You may, however, qualify for the foreign earned income exclusion or the housing exclusion or deduction under the physical presence test (discussed later).
Example.
You were a bona fide resident of Singapore from March 1, 2006, through September 14, 2008. On September 15, 2008, you returned to the United States. Since you were a bona fide resident of a foreign country for all of 2007, you were also a bona fide resident of a foreign country from March 1, 2006, through the end of 2006 and from January 1, 2008 through September 14, 2008.
Example 1.
You were a resident of Pakistan from October 1, 2007, through November 30, 2008. On December 1, 2008, you and your family returned to the United States to wait for an assignment to another foreign country. Your household goods also were returned to the United States.
Your foreign residence ended on November 30, 2008, and did not begin again until after you were assigned to another foreign country and physically entered that country. Since you were not a bona fide resident of a foreign country for the entire tax year of 2007 or 2008, you do not meet the bona fide residence test in either year. You may, however, qualify for the foreign earned income exclusion or the housing exclusion or deduction under the physical presence test, discussed later.
Example 2.
Assume the same facts as in Example 1, except that upon completion of your assignment in Pakistan you were given a new assignment to Turkey. On December 1, 2008, you and your family returned to the United States for a month's vacation. On January 2, 2009, you arrived in Turkey for your new assignment. Because you did not interrupt your bona fide residence abroad, you meet the bona fide residence test.
You meet the physical presence test if you are physically present in a foreign country or countries 330 full days during a period of 12 consecutive months. The 330 days do not have to be consecutive. Any U.S. citizen or resident alien can use the physical presence test to qualify for the exclusions and the deduction.
The physical presence test is based only on how long you stay in a foreign country or countries. This test does not depend on the kind of residence you establish, your intentions about returning, or the nature and purpose of your stay abroad.
Example 1.
You leave Ireland by air at 11:00 p.m. on July 6 and arrive in Sweden at 5:00 a.m. on July 7. Your trip takes less than 24 hours and you lose no full days.
Example 2.
You leave Norway by ship at 10:00 p.m. on July 6 and arrive in Portugal at 6:00 a.m. on July 8. Since your travel is not within a foreign country or countries and the trip takes more than 24 hours, you lose as full days July 6, 7, and 8. If you remain in Portugal, your next full day in a foreign country is July 9.
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Your 12-month period can begin with any day of the month. It ends the day before the same calendar day, 12 months later.
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Your 12-month period must be made up of consecutive months. Any 12-month period can be used if the 330 days in a foreign country fall within that period.
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You do not have to begin your 12-month period with your first full day in a foreign country or end it with the day you leave. You can choose the 12-month period that gives you the greatest exclusion.
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In determining whether the 12-month period falls within a longer stay in the foreign country, 12-month periods can overlap one another.
Example 1.
You are a construction worker who works on and off in a foreign country over a 20-month period. You might pick up the 330 full days in a 12-month period only during the middle months of the time you work in the foreign country because the first few and last few months of the 20-month period are broken up by long visits to the United States.
Example 2.
You work in New Zealand for a 20-month period from January 1, 2007, through August 31, 2008, except that you spend 28 days in February 2007 and 28 days in February 2008 on vacation in the United States. You are present in New Zealand 330 full days during each of the following two 12-month periods: January 1, 2007 – December 31, 2007 and September 1, 2007 – August 31, 2008. By overlapping the 12-month periods in this way, you meet the physical presence test for the whole 20-month period. See Figure 4-B above.
Both the bona fide residence test and the physical presence test contain minimum time requirements. The minimum time requirements can be waived, however, if you must leave a foreign country because of war, civil unrest, or similar adverse conditions in that country. You must be able to show that you reasonably could have expected to meet the minimum time requirements if not for the adverse conditions. To qualify for the waiver, you must actually have your tax home in the foreign country and be a bona fide resident of, or be physically present in, the foreign country on or before the beginning date of the waiver.
Early in 2009, the IRS will publish in the Internal Revenue Bulletin a list of countries qualifying for the waiver for 2008 and the effective dates. If you left one of the countries on or after the date listed for each country, you can meet the bona fide residence test or physical presence test for 2008 without meeting the minimum time requirement. However, in figuring your exclusion, the number of your qualifying days of bona fide residence or physical presence includes only days of actual residence or presence within the country.
You can read the Internal Revenue Bulletin on the Internet at www.irs.gov. Or, you can get a copy of the list of countries by writing to:
Internal Revenue Service
International Section
P.O. Box 920
Bensalem, PA 19020-8518
If you are present in a foreign country in violation of U.S. law, you will not be treated as a bona fide resident of a foreign country or as physically present in a foreign country while you are in violation of the law. Income that you earn from sources within such a country for services performed during a period of violation does not qualify as foreign earned income. Your housing expenses within that country (or outside that country for housing your spouse or dependents) while you are in violation of the law cannot be included in figuring your foreign housing amount.
For 2008, the only country to which travel restrictions applied was Cuba. The restrictions applied for the entire year.
However, individuals working at the U.S. Naval Base at Guantanamo Bay in Cuba are not in violation of U.S. law. Personal service income earned by individuals at the base is eligible for the foreign earned income exclusion provided the other requirements are met.
To claim the foreign earned income exclusion, the foreign housing exclusion, or the foreign housing deduction, you must have foreign earned income.
Foreign earned income generally is income you receive for services you perform during a period in which you meet both of the following requirements.
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Your tax home is in a foreign country.
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You meet either the bona fide residence test or the physical presence test.
To determine whether your tax home is in a foreign country, see Tax Home in Foreign Country, earlier. To determine whether you meet either the bona fide residence test or the physical presence test, see Bona Fide Residence Test and Physical Presence Test, earlier.
Foreign earned income does not include the following amounts.
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The value of meals and lodging that you exclude from your income because it was furnished for the convenience of your employer.
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Pension or annuity payments you receive, including social security benefits (see Pensions and annuities, later).
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Pay you receive as an employee of the U.S. Government. (See U.S. Government Employees, later.)
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Amounts you include in your income because of your employer's contributions to a nonexempt employee trust or to a nonqualified annuity contract.
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Any unallowable moving expense deduction that you choose to recapture as explained under Moving Expense Attributable to Foreign Earnings in 2 Years in chapter 5.
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Payments you receive after the end of the tax year following the tax year in which you performed the services that earned the income.
Earned | Unearned | Variable |
Income | Income | Income |
Salaries and | Dividends | Business |
wages | Interest | profits |
Commissions | Capital gains | Royalties |
Bonuses | Gambling | Rents |
Professional | winnings | Scholarships |
fees | Alimony | and |
Tips | Social security | fellowships |
benefits | ||
Pensions | ||
Annuities |
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Cost of living allowances.
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Overseas differential.
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Family allowance.
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Reimbursement for education or education allowance.
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Home leave allowance.
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Quarters allowance.
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Reimbursement for moving or moving allowance (unless excluded from income as discussed later in Reimbursement of employee expenses under Earned and Unearned Income).
The source of your earned income is the place where you perform the services for which you received the income. Foreign earned income is income you receive for working in a foreign country. Where or how you are paid has no effect on the source of the income. For example, income you receive for work done in Austria is income from a foreign source even if the income is paid directly to your bank account in the United States and your employer is located in New York City.
Example.
You are a U.S. citizen, a bona fide resident of Canada, and working as a mining engineer. Your salary is $76,800 per year. You also receive a $6,000 cost of living allowance, and a $6,000 education allowance. Your employment contract did not indicate that you were entitled to these allowances only while outside the United States. Your total income is $88,800. You work a 5-day week, Monday through Friday. After subtracting your vacation, you have a total of 240 workdays in the year. You worked in the United States during the year for 6 weeks (30 workdays). The following shows how to figure the part of your income that is for work done in Canada during the year.
Number of days worked in Canada during the year (210) | × | Total income ($88,800) | = | $77,700 | ||
Number of days of work during the year for which payment was made (240) |
Your foreign source earned income is $77,700.
Earned income was defined earlier as pay for personal services performed. Some types of income are not easily identified as earned or unearned income. Some of these types of income are further explained here.
Example 1.
You are a U.S. citizen and meet the bona fide residence test. You invest in a partnership based in Cameroon that is engaged solely in selling merchandise outside the United States. You perform no services for the partnership. At the end of the tax year, your share of the net profits is $80,000. The entire $80,000 is unearned income.
Example 2.
Assume that in Example 1 you spend time operating the business. Your share of the net profits is $80,000, 30% of your share of the profits is $24,000. If the value of your services for the year is $15,000, your earned income is limited to the value of your services, $15,000.
Example 1.
You are a U.S. citizen and an officer and stockholder of a corporation in Honduras. You perform no work or service of any kind for the corporation. During the tax year you receive a $10,000 “salary” from the corporation. The $10,000 clearly is not for personal services and is unearned income.
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For the transfer of property rights of the writer in the writer's product, or
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Under a contract to write a book or series of articles.
Example.
Larry Smith, a U.S. citizen living in Australia, owns and operates a rooming house in Sydney. If he is operating the rooming house as a business that requires capital and personal services, he can consider up to 30% of net rental income as earned income. On the other hand, if he just owns the rooming house and performs no personal services connected with its operation, except perhaps making minor repairs and collecting rents, none of his net income from the house is considered earned income. It is all unearned income.
Example.
You are privately employed and live in Japan all year. You are paid a salary of $6,000 a month. You live rent-free in a house provided by your employer that has a fair rental value of $3,000 a month. The house is not provided for your employer's convenience. You report on the calendar-year, cash basis. You received $72,000 salary from foreign sources plus $36,000 fair rental value of the house, or a total of $108,000 of earned income.
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Straight-commission salespersons.
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Employees who have arrangements with their employers under which taxes are not withheld on a percentage of the commissions because the employers consider that percentage to be attributable to the employees' expenses.
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The expenses covered under the plan must have a business connection.
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The employee must adequately account to the employer for these expenses within a reasonable period of time.
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The employee must return any excess reimbursement or allowance within a reasonable period of time.
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Any reimbursements of, or payments for, nondeductible moving expenses,
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Reimbursements that are more than your deductible expenses and that you do not return to your employer,
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Any reimbursements made (or treated as made) under a nonaccountable plan (any plan that does not meet the rules listed above for an accountable plan), even if they are for deductible expenses, and
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Any reimbursement of moving expenses you deducted in an earlier year.
Example.
You are a U.S. citizen working in the United States. You were told in October 2007 that you were being transferred to a foreign country. You arrived in the foreign country on December 15, 2007, and you are a bona fide resident for the remainder of 2007 and all of 2008. Your employer reimbursed you $2,000 in January 2008 for the part of the moving expense that you were not allowed to deduct. Because you did not qualify for the exclusion under the bona fide residence test for at least 120 days in 2007 (the year of the move), the reimbursement is considered pay for services performed in the foreign country for both 2007 and 2008.
You figure the part of the reimbursement for services performed in the foreign country in 2007 by multiplying the total reimbursement by a fraction. The fraction is the number of days during which you were a bona fide resident during the year of the move divided by 365. The remaining part of the reimbursement is for services performed in the foreign country in 2008.
This computation is used only to determine when the reimbursement is considered earned. You would include the amount of the reimbursement in income in 2008, the year you received it.
Example.
You are a U.S. citizen employed in a foreign country. You retired from employment with your employer on March 31, 2008, and returned to the United States after having been a bona fide resident of the foreign country for several years. A written agreement with your employer entered into before you went abroad provided that you would be reimbursed for your move back to the United States.
In April 2008, your former employer reimbursed you $2,000 for the part of the cost of your move back to the United States that you were not allowed to deduct. Because you were not a bona fide resident of a foreign country or countries for a period that included at least 120 days in 2008 (the year of the move), the includible reimbursement is considered pay for services performed in the foreign country for both 2008 and 2007.
You figure the part of the moving expense reimbursement for services performed in the foreign country for 2008 by multiplying the total includible reimbursement by a fraction. The fraction is the number of days of foreign residence during the year (90) divided by the number of days in the year (366). The remaining part of the includible reimbursement is for services performed in the foreign country in 2007. You report the amount of the includible reimbursement in 2008, the year you received it.
For purposes of the foreign earned income exclusion, the foreign housing exclusion, and the foreign housing deduction, foreign earned income does not include any amounts paid by the United States or any of its agencies to its employees. This includes amounts paid from both appropriated and nonappropriated funds.
The following organizations (and other organizations similarly organized and operated under United States Army, Navy, or Air Force regulations) are integral parts of the Armed Forces, agencies, or instrumentalities of the United States.
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United States Armed Forces exchanges.
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Commissioned and noncommissioned officers' messes.
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Armed Forces motion picture services.
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Kindergartens on foreign Armed Forces installations.
Amounts paid by the United States or its agencies to persons who are not their employees may qualify for exclusion or deduction.
If you are a U.S. Government employee paid by a U.S. agency that assigned you to a foreign government to perform specific services for which the agency is reimbursed by the foreign government, your pay is from the U.S. Government and does not qualify for exclusion or deduction.
If you have questions about whether you are an employee or an independent contractor, get Publication 15-A, Employer's Supplemental Tax Guide.
You do not include in your income the value of meals and lodging provided to you and your family by your employer at no charge if the following conditions are met.
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The meals are furnished:
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On the business premises of your employer, and
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For the convenience of your employer.
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The lodging is furnished:
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On the business premises of your employer,
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For the convenience of your employer, and
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As a condition of your employment.
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If these conditions are met, do not include the value of the meals or lodging in your income, even if a law or your employment contract says that they are provided as compensation.
Amounts you do not include in income because of these rules are not foreign earned income.
If you receive a Form W-2, excludable amounts should not be included in the total reported in box 1 as wages.
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Provided for your employer's convenience because the place where you work is in a remote area where satisfactory housing is not available to you on the open market within a reasonable commuting distance,
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Located as close as reasonably possible in the area where you work, and
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Provided in a common area or enclave that is not available to the general public for lodging or accommodations and that normally houses at least ten employees.
If your tax home is in a foreign country and you meet the bona fide residence test or the physical presence test, you can choose to exclude from your income a limited amount of your foreign earned income. Foreign earned income was defined earlier in this chapter.
You can also choose to exclude from your income a foreign housing amount. This is explained later under Foreign Housing Exclusion. If you choose to exclude a foreign housing amount, you must figure the foreign housing exclusion before you figure the foreign earned income exclusion. Your foreign earned income exclusion is limited to your foreign earned income minus your foreign housing exclusion.
If you choose to exclude foreign earned income, you cannot deduct, exclude, or claim a credit for any item that can be allocated to or charged against the excluded amounts. This includes any expenses, losses, and other normally deductible items allocable to the excluded income. For more information about deductions and credits, see chapter 5.
You may be able to exclude up to $87,600 of your foreign earned income in 2008.
You cannot exclude more than the smaller of:
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$87,600, or
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Your foreign earned income (discussed earlier) for the tax year minus your foreign housing exclusion (discussed later).
If both you and your spouse work abroad and each of you meets either the bona fide residence test or the physical presence test, you can each choose the foreign earned income exclusion. You do not both need to meet the same test. Together, you and your spouse can exclude as much as $175,200.
Example.
You were a bona fide resident of Brazil for all of 2007 and 2008. You report your income on the cash basis. In 2007, you were paid $76,000 for work you did in Brazil during that year. You excluded all of the $76,000 from your income in 2007.
In 2008, you were paid $101,400 for your work in Brazil. $13,000 was for work you did in 2007 and $88,400 was for work you did in 2008. You can exclude $9,700 of the $13,000 from your income in 2008. This is the $85,700 maximum exclusion in 2007 minus the $76,000 actually excluded that year. You must include the remaining $3,300 in income in 2008 because you could not have excluded that income in 2007 if you had received it that year. You can exclude $87,600 of the $88,400 you were paid for work you did in 2008 from your 2008 income.
Your total foreign earned income exclusion for 2008 is $97,300 ($9,700 of the pay received in 2008 for work you did in 2007 and $87,600 for work you did in 2008). You would include in your 2008 income $4,100 ($3,300 for the work you did in 2007 and $800 for the work you did in 2008).
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The period for which the payment is made is a normal payroll period of your employer that regularly applies to you.
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The payroll period includes the last day of your tax year (December 31 if you figure your taxes on a calendar-year basis).
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The payroll period is not longer than 16 days.
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The payday comes at the same time in relation to the payroll period that it would normally come and it comes before the end of the next payroll period.
Example.
You are paid twice a month. For the normal payroll period which begins on the first of the month and ends on the fifteenth of the month, you are paid on the sixteenth day of the month. For the normal payroll period that begins on the sixteenth of the month and ends on the last day of the month, you are paid on the first day of the following month. Because all of the above conditions are met, the pay you received on January 1, 2008, is considered earned in 2008.
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Divide the bonus by the number of calendar months in the period when you did the work that resulted in the bonus.
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Multiply the result of (1) by the number of months you did the work during the year. This is the amount that is subject to the exclusion limit for that tax year.
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Have your tax home in a foreign country, and
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Meet either the bona fide residence test or the physical presence test.
Example.
You report your income on the calendar-year basis and you qualified for the foreign earned income exclusion under the bona fide residence test for 75 days in 2008. You can exclude a maximum of 75/366 of $87,600, or $17,951, of your foreign earned income for 2008. If you qualify under the bona fide residence test for all of 2009, you can exclude your foreign earned income up to the 2009 limit.
Example.
You are physically present and have your tax home in a foreign country for a 16-month period from June 1, 2007, through September 29, 2008, except for 16 days in December 2007 when you were on vacation in the United States. You figure the maximum exclusion for 2007 as follows.
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Beginning with June 1, 2007, count forward 330 full days. Do not count the 16 days you spent in the United States. The 330th day, May 11, 2008, is the last day of a 12-month period.
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Count backward 12 months from May 10, 2008, to find the first day of this 12-month period, May 11, 2007. This 12-month period runs from May 11, 2007, through May 10, 2008.
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Count the total days during 2007 that fall within this 12-month period. This is 235 days (May 11, 2007 – December 31, 2007).
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Multiply $85,700 (the maximum exclusion for 2007) by the fraction 235/365 to find your maximum exclusion for 2007 ($55,177).
You figure the maximum exclusion for 2008 in the opposite manner.
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Beginning with your last full day, September 29, 2008, count backward 330 full days. Do not count the 16 days you spent in the United States. That day, October 20, 2007, is the first day of a 12-month period.
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Count forward 12 months from October 20, 2007, to find the last day of this 12-month period, October 19, 2008. This 12-month period runs from October 20, 2007, through October 19, 2008.
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Count the total days during 2008 that fall within this 12-month period. This is 293 days (January 1, 2008 – October 19, 2008).
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Multiply $87,600, the maximum limit, by the fraction 293/366 to find your maximum exclusion for 2008 ($70,128).
The foreign earned income exclusion is voluntary. You can choose the exclusion by completing the appropriate parts of Form 2555.
Your initial choice of the exclusion on Form 2555 or Form 2555-EZ generally must be made with one of the following returns.
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A return filed by the due date (including any extensions).
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A return amending a timely-filed return. Amended returns generally must be filed by the later of 3 years after the filing date of the original return or 2 years after the tax is paid.
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A return filed within 1 year from the original due date of the return (determined without regard to any extensions).
You can choose the exclusion on a return filed after the periods described above if you owe no federal income tax after taking into account the exclusion.
If you owe federal income tax after taking into account the exclusion, you can choose the exclusion on a return filed after the periods described above if you file before IRS discovers that you failed to choose the exclusion. You must type or legibly print at the top of the first page of the Form 1040 “Filed pursuant to section 1.911-7(a)(2)(i)(D).”
If you owe federal income tax after taking into account the foreign earned income exclusion and the IRS discovered that you failed to choose the exclusion, you may still be able to choose the exclusion. You must request a private letter ruling under Income Tax Regulation 301.9100-3 and Revenue Procedure 2008-1.
Revenue procedures are published in the Internal Revenue Bulletin (I.R.B.) and in the Cumulative Bulletin (C.B.), which are volumes containing official matters of the Internal Revenue Service. The I.R.B. is available on the Internet at www.irs.gov. To access Revenue Procedure 2008-1, enter Rev. Proc. 2008-1 in the search box.
Once you choose to exclude your foreign earned income, that choice remains in effect for that year and all later years unless you revoke it.
You can revoke your choice for any year. You do this by attaching a statement that you are revoking one or more previously made choices to the return or amended return for the first year that you do not wish to claim the exclusion(s). You must specify which choice(s) you are revoking. You must revoke separately a choice to exclude foreign earned income and a choice to exclude foreign housing amounts.
If you revoked a choice and within 5 years again wish to choose the same exclusion, you must apply for IRS approval. You do this by requesting a ruling from the IRS.
Mail your request for a ruling, in duplicate, to:
Associate Chief Counsel (International)
Internal Revenue Service
Attn: CC:PA:LPD:DRU
P.O. Box 7604
Ben Franklin Station
Washington, DC 20044
Because requesting a ruling can be complex, you may need professional help. Also, the IRS charges a fee for issuing these rulings. For more information, see Revenue Procedure 2008-1, which is published in Internal Revenue Bulletin No. 2008-1.
In deciding whether to give approval, the IRS will consider any facts and circumstances that may be relevant. These may include a period of residence in the United States, a move from one foreign country to another foreign country with different tax rates, a substantial change in the tax laws of the foreign country of residence or physical presence, and a change of employer.
In addition to the foreign earned income exclusion, you can also claim an exclusion or a deduction from gross income for your housing amount if your tax home is in a foreign country and you qualify for the exclusions and deduction under either the bona fide residence test or the physical presence test.
The housing exclusion applies only to amounts considered paid for with employer-
provided amounts. The housing deduction applies only to amounts paid for with self-employment earnings.
If you are married and you and your spouse each qualifies under one of the tests, see Married Couples, later.
Your housing amount is the total of your housing expenses for the year minus the base housing amount.
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Rent,
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The fair rental value of housing provided in kind by your employer,
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Repairs,
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Utilities (other than telephone charges),
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Real and personal property insurance,
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Nondeductible occupancy taxes,
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Nonrefundable fees for securing a leasehold,
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Rental of furniture and accessories, and
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Residential parking.
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Expenses that are lavish or extravagant under the circumstances,
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Deductible interest and taxes (including deductible interest and taxes of a tenant-stockholder in a cooperative housing corporation),
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The cost of buying property, including principal payments on a mortgage,
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The cost of domestic labor (maids, gardeners, etc.),
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Pay television subscriptions,
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Improvements and other expenses that increase the value or appreciably prolong the life of property,
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Purchased furniture or accessories, or
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Depreciation or amortization of property or improvements.
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A state of warfare or civil insurrection in the general area of your tax home, and
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Conditions under which it is not feasible to provide family housing (for example, if you must live on a construction site or drilling rig).
If you do not have self-employment income, all of your earnings are employer-provided amounts and your entire housing amount is considered paid for with those employer-provided amounts. This means that you can exclude (up to the limits) your entire housing amount.
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Your salary,
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Any reimbursement for housing expenses,
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Amounts your employer pays to a third party on your behalf,
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The fair rental value of company-owned housing furnished to you unless that value is excluded under the rules explained earlier at Exclusion of Meals and Lodging,
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Amounts paid to you by your employer as part of a tax equalization plan, and
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Amounts paid to you or a third party by your employer for the education of your dependents.
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That part of your housing amount paid for with employer-provided amounts, or
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Your foreign earned income.
If you do not have self-employment income, you cannot take a foreign housing deduction.
How you figure your housing deduction depends on whether you have only self-employment income or both self-employment income and employer-provided income. In either case, the amount you can deduct is subject to the limit described later.
Example.
Your housing amount for the year is $12,000. During the year, your total foreign earned income is $80,000, of which half ($40,000) is from self-employment and half is from your services as an employee. Half of your housing amount ($12,000 ÷ 2) is considered provided by your employer. You can exclude $6,000 as a housing exclusion. You can deduct the remaining $6,000 as a housing deduction subject to the following limit.
Your housing deduction cannot be more than your foreign earned income minus the total of:
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Your foreign earned income exclusion, plus
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Your housing exclusion.
If both you and your spouse qualify for the foreign housing exclusion or the foreign housing deduction, how you figure the benefits depends on whether you maintain separate households.
If you and your spouse live apart and maintain separate households, you both may be able to claim the foreign housing exclusion or the foreign housing deduction. You can both claim the exclusion or the deduction if both of the following conditions are met.
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You and your spouse have different tax homes that are not within reasonable commuting distance of each other.
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Neither spouse's residence is within reasonable commuting distance of the other spouse's tax home.
If you and your spouse lived in the same foreign household and file a joint return, you must figure your housing amounts jointly. If you file separate returns, only one spouse can claim the housing exclusion or deduction.
In figuring your housing amount jointly, you can combine your housing expenses and figure one base housing amount. Either spouse (but not both) can claim the housing exclusion or housing deduction. However, if you and your spouse have different periods of residence or presence and the one with the shorter period of residence or presence claims the exclusion or deduction, you can claim as housing expenses only the expenses for that shorter period.
Example.
Tom and Jane live together and file a joint return. Tom was a bona fide resident of and had his tax home in Ghana from August 17, 2008, through December 31, 2009. Jane was a bona fide resident of and had her tax home in Ghana from September 15, 2008, through December 31, 2009.
During 2008, Tom received $75,000 of foreign earned income and Jane received $50,000 of foreign earned income. Tom paid $10,000 for housing expenses, of which $7,500 was for expenses incurred from September 15 through the end of the year. Jane paid $3,000 for housing expenses in 2008, all of which were incurred during her period of residence in Ghana.
Tom and Jane figure their housing amount jointly. If Tom claims the housing exclusion, their housing expenses would be $13,000 and their base housing amount, using Tom's period of residence (Aug. 17 – Dec. 31, 2008), would be $5,247 ($38.30 × 137 days). Tom's housing amount would be $7,753 ($13,000 – $5,247). If, instead, Jane claims the housing exclusion, their housing expenses would be limited to $10,500 ($7,500 + $3,000) and their base housing amount, using Jane's period of residence (Sept. 15 – Dec. 31, 2008), would be $4,136 ($38.30 × 108 days). Jane's housing amount would be $6,364 ($10,500 – $4,136).
If you are claiming the foreign earned income exclusion only, you can use Form 2555. In some circumstances, you can use Form 2555-EZ to claim the foreign earned income exclusion. You must file one of these forms each year you are claiming the exclusion.
If you are claiming either the foreign housing exclusion or the foreign housing deduction, you must use Form 2555. You cannot use Form 2555-EZ. Form 2555 shows how you meet the bona fide residence test or physical presence test, how much of your earned income is excluded, and how to figure the amount of your allowable housing exclusion or deduction.
Do not submit Form 2555 or Form 2555-EZ by itself.
Form 2555-EZ has fewer lines than Form 2555. You can use this form if all seven of the following apply.
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You are a U.S. citizen or a resident alien.
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Your total foreign earned income for the year is $87,600 or less.
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You have earned wages/salaries in a foreign country.
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You are filing a calendar year return that covers a 12-month period.
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You did not have any self-employment income for the year.
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You did not have any business or moving expenses for the year.
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You are not claiming the foreign housing exclusion or deduction.
If you claim exclusion under the bona fide residence test, you should fill out Parts I, II, IV, and V of Form 2555. In filling out Part II, be sure to give your visa type and the period of your bona fide residence. Frequently, these items are overlooked.
If you claim exclusion under the physical presence test, you should fill out Parts I, III, IV, and V of Form 2555. When filling out Part III, be sure to insert the beginning and ending dates of your 12-month period and the dates of your arrivals and departures, as requested in the travel schedule.
You must fill out Part VI if you are claiming a foreign housing exclusion or deduction.
Fill out Part IX if you are claiming the foreign housing deduction.
If you are claiming the foreign earned income exclusion, fill out Part VII.
Finally, if you are claiming the foreign earned income exclusion, the foreign housing exclusion, or both, fill out Part VIII.
If you and your spouse both qualify to claim the foreign earned income exclusion, the foreign housing exclusion, or the foreign housing deduction, you and your spouse must file separate Forms 2555 to claim these benefits. See the discussion earlier under Separate Households.
Jim and Judy Adams are married and have two dependent children. They are both U.S. citizens and they file a joint U.S. income tax return. Each one has a tax home in a foreign country and each meets the physical presence test for all of 2008. They both can exclude their foreign earned income up to the limit. Their qualified housing expenses are limited to 30% of the maximum foreign earned income exclusion.
Jim is a petroleum engineer. For 2008, his salary, which was entirely from foreign sources was $74,000. In addition, his employer provided him an annual housing allowance of $18,000, which he used to maintain a rented apartment at his tax home in City A, Country X (which is not a high-cost locality), for the period he was not working at remote drilling sites.
At various times during the year, Jim worked at remote oil drilling sites. While he worked at these remote sites, his employer provided him lodging and meals at nearby camps. Satisfactory housing was not available on the open market near these drilling sites, and the lodging was provided in common areas that normally accommodated 10 or more employees and were not available to the general public. The fair market value of the lodging he was provided in these camps was $2,000, and the value of the meals was $1,000.
After he made an adequate accounting, Jim was reimbursed by his employer for part of his travel expenses and other employee business expenses. Jim had $2,500 of unreimbursed employee business expenses for travel, meals, and lodging that were allocable to his foreign earned income.
Because of adverse conditions in Country X, Judy and the children lived in City Y, Country Y (which is not a high-cost locality), where she worked as an executive secretary with a U.S. company. Her earnings from this job were $47,000. These earnings were subject to foreign income tax.
The Adams family rented an apartment in Country Y for Judy and the children. They paid $1,000 a month rent, including utilities, or $12,000 for the year. The Adamses choose to treat the expenses for the apartment as those for a qualified second foreign household. They include the $12,000 Country Y housing expenses with Jim's $18,000 Country X housing expenses. This results in a larger total housing exclusion.
Jim and Judy had taxable U.S. interest income of $7,500 for the year. The Adamses had no other income for the year and do not itemize deductions.
The Adamses report their income and figure their foreign earned income exclusions and foreign housing exclusion, as shown on the accompanying filled-in forms.
First, they list their income on the front of Form 1040. Their combined salaries, including Jim's $18,000 housing allowance, total $139,000. They enter this on line 7. They enter their interest income of $7,500 on line 8a.
At this point, Jim will complete Form 2555 and Judy will complete Form 2555-EZ to figure their foreign earned income and housing exclusions.
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