TN 6 (07-90)
GN 05010.055 Special Rules for the First and Last Year of Residency
The residency start date is for:
Persons lawfully admitted for permanent residence (who do not meet the substantial presence test) - The first day in the calendar year on which the individual is present in the U.S. as a lawful permanent resident.
NOTE: An individual who is granted permission to reside in U.S. as a permanent resident is not a U.S. resident until he actually comes to the U.S. and is admitted as a permanent resident.
Persons meeting the substantial presence test - The first day in the calendar year on which the individual is present in the U.S.
EXAMPLE: C1 (who had never been in U.S.) entered U.S. on February 1, 1989 and remained for the rest of the year. His residency start date is February 1, 1989, even though he did not meet substantial presence test until August 2,1989 (183rd day of presence in U.S.).
B. Policy - First Year of Residency
If an individual is a U.S. resident (under the lawful permanent residence or substantial presence test) in a calendar year, but was not a U.S. resident in the prior year, he is a U.S. resident for only that part of the year beginning with residency start date.
2. First Year Choice
An individual can choose to be treated as a resident alien for part of the year of arrival if he does not meet either the lawful admission for the permanent residence or the substantial presence test for the year of his arrival but meets the substantial presence test in year immediately after year of his arrival.
To make this choice, the individual must:
Be present in the U.S. for at least 31 consecutive days in the year of arrival;
Be present in the U.S. for at least 75 percent of the number of days beginning with the first day of the 31 consecutive day period and ending with the last day of the year of arrival. (Up to 5 days absence from U.S. can be treated as days of presence in the U.S.); and
Make this choice after the substantial presence test has been met for the year immediately after the year of arrival.
C. Policy - Last Year of Residency
An alien is not a U.S. resident during any part of a calendar year if that:
Part is after the last day on which he was present in the U.S. (or was a lawful permanent resident);
Individual had a closer connection to a foreign country than the U.S. during that part of the year. (up to 10 days of actual presence in U.S. can be disregarded for which it is established he had a closer connection to another country); and
Individual was not a U.S. resident at any time during the next calendar year.
Assume an individual leaving the U.S. and not claiming resident alien status is a nonresident alien effective with the day after the day of departure.
For the purposes of B.2 and C., disregard nominal presences in the U.S. when applying the rules for the first and last years of residency.
Do not suggest an individual elect to be treated as a resident alien for his first year of presence. Refer any individual to IRS who asks if he can be treated as a resident alien for that year or requests a tax refund because he has made such an election.