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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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