First-Year Choice
First-Year Choice
If you do not meet either the green card test or the substantial presence test for 2020 or 2021 and you did not choose to be treated as a resident for part of 2020, but you meet the substantial presence test for 2021, you can choose to be treated as a U.S. resident for part of 2021. To make this choice, you must:
1.
Be present in the United States for at least 31 days in a row in 2021, and
2.
Be present in the United States for at least 75% of the number of days beginning with the first day of the 31-day period and ending with the last day of 2021. For purposes of this 75% requirement, you can treat up to 5 days of absence from the United States as days of presence in the United States.
When counting the days of presence in (1) and (2) above, do not count the days you were in the United States under any of the exceptions discussed earlier under Days of Presence in the United States.
If you make the first-year choice, your residency starting date for 2021 is the first day of the earliest 31-day period (described in (1) above) that you use to qualify for the choice. You are treated as a U.S. resident for the rest of the year. If you are present for more than one 31-day period and you satisfy condition (2) above for each of those periods, your residency starting date is the first day of the first 31-day period. If you are present for more than one 31-day period but you satisfy condition (2) above only for a later 31-day period, your residency starting date is the first day of the later 31-day period.
Note. You do not have to be married to make this choice.
Example 1. Juan DaSilva is a citizen of the Philippines. He came to the United States for the first time on November 1, 2021, and was here on 31 consecutive days (from November 1 through December 1, 2021). Juan returned to the Philippines on December 1 and came back to the United States on December 17, 2021. He stayed in the United States for the rest of the year. During 2021, Juan was a resident of the United States under the substantial presence test. Juan can make the first-year choice for 2021 because he was in the United States in 2021 for a period of 31 days in a row (November 1 through December 1) and for at least 75% (0.75) of the days following (and including) the first day of his 31-day period (46 total days of presence in the United States divided by 61 days in the period from November 1 through December 31 equals 75.4% (0.754)). If Juan makes the first-year choice, his residency starting date will be November 1, 2021.
Example 2. The facts are the same as in Example 1, except that Juan was also absent from the United States on December 24, 25, 29, 30, and 31. He can make the first-year choice for 2021 because up to 5 days of absence are considered days of presence for purposes of the 75% (0.75) requirement.
Statement required to make the first-year choice for 2021. You must attach a statement to Form 1040 or 1040-SR to make the first-year choice for 2021. The statement must contain your name and address and specify the following.
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That you are making the first-year choice for 2021.
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That you were not a resident in 2020.
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That you are a resident under the substantial presence test in 2022.
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The number of days of presence in the United States during 2022.
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The date or dates of your 31-day period of presence and the period of continuous presence in the United States during 2021.
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The date or dates of absence from the United States during 2021 that you are treating as days of presence. You cannot file Form 1040 or 1040-SR or the statement until you meet the substantial presence test for 2021. If you have not met the test for 2022 as of April 18, 2022, you can request an extension of time for filing your 2022 Form 1040 or 1040-SR until a reasonable period after you have met that test. To request an extension to file until October 15, 2022, use Form 4868. You can file the paper form or use one of the electronic filing options explained in the Form 4868 instructions. You should pay with this extension the amount of tax you expect to owe for 2021 figured as if you were a nonresident alien the entire year. You can use Form 1040-NR to figure out the tax. Enter the tax on Form 4868. If you do not pay the tax due, you will be charged interest on any tax not paid by the regular due date of your return, and you may be charged a penalty on the late payment.
Once you make the first-year choice, you may not revoke it without the approval of the IRS.
If you do not follow the procedures discussed here for making the first-year choice, you will be treated as a nonresident alien for all of 2021. However, this does not apply if you can show by clear and convincing evidence that you took reasonable actions to become aware of the filing procedures and significant
Quoted from Publication 519 page 8