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Commissioner, 927 F.2d 849, 856-857 (5th Cir. 1991), revg. T.C.
Memo. 1989-616.
Because petitioners’ townhouse was leased to others, not
available to petitioners, and because petitioners had limited
other ties to the United States, petitioners did not have an
abode in the United States during petitioners’ 2001 and 2002
applicable periods.
Physical Presence Requirement
Under the second requirement of section 911(d)(1), because
petitioners acknowledge that they do not qualify for the foreign
earned income exclusion under the bona fide foreign residence
requirement, we address only the alternate physical presence
requirement.
Under section 911(d)(1)(B), a taxpayer who spends at least
330 days during an applicable period in a foreign country or
countries will satisfy the physical presence requirement for the
related tax year. For this purpose, a taxpayer is to add
together all foreign days falling within any one applicable
period. Sec. 1.911-2(d)(1) and (2), Income Tax Regs.
An applicable period consists of any 12 consecutive months.
Sec. 1.911-2(d)(1), Income Tax Regs. In order for the exclusion
to be applicable to reduce gross income in a particular year, the
applicable period must have some overlap with the taxpayer’s
taxable year in question. Sec. 1.911-3(d)(2) and (3), Income Tax
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