Myron R. Struck and Thelma C. Struck - Page 8

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               In his briefs, respondent states that the only applicable              
          periods we should consider for petitioners for 2001 and 2002 are            
          January 1 to December 31, 2001, and May 16, 2001, to May 15, 2002.          

                                        OPINION                                       
               Taxpayers generally have the burden of proof.  Rule 142(a).            
          However, because petitioners submitted credible evidence,                   
          maintained records, and cooperated with respondent, the burden of           
          proof regarding petitioners’ physical presence during 2001 and              
          2002 is on respondent.  Sec. 7491(a)(1), (2)(A) and (B).                    
               Generally, section 911 provides to U.S. taxpayers a limited            
          elective exclusion from gross income for income earned overseas.            
               To qualify for this foreign earned income exclusion for a              
          particular year, a taxpayer:  (1) Must have a foreign tax home,             
          sec. 911(d)(1), and (2) must either be a bona fide resident of a            
          foreign country for the taxpayer’s full taxable year (bona fide             
          residence requirement) or be physically present in a foreign                
          country or countries for at least 330 days during any consecutive           
          12 months which overlap the taxpayer’s taxable year (physical               
          presence requirement), sec. 911(d)(1)(A) and (B).                           
               A qualified taxpayer may only exclude the lesser of actual             
          foreign earned income or the maximum amount set by statute.  Sec.           
          911(b)(2)(A).  Married taxpayers may each use their exclusions              
          separately on separate returns or combine their exclusions on a             
          joint return, sec. 1.911-5(a)(2), Income Tax Regs., and without             





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