In brief

Up until now, the medical exception to the substantial presence test has been limited only to medical conditions arising while such individual was present in the United States. During this unprecedented time, with countries closing their borders, global travel limited and persons stranded in countries not their own, following the lead of the OECD and other countries, the IRS has expanded the medical condition exception to the substantial presence test to account for US days of presence related to COVID-19.


Here is a summary of this alert of the newly issued Revenue Procedure 2020-20 (the “Revenue Procedure”):

  • Foreign nationals who spend too much time in the US may become US resident taxpayers under the Substantial Presence Test
  • The Medical Condition Exception, generally, is an exception that excludes certain days of US presence related to a medical condition that arose while the foreign national was in the US
  • The Revenue Procedure expands the Medical Condition Exception for COVID-19 related US days of presence of foreign nationals
  • Under the expansion, a foreign national may exclude for purposes of the Substantial Presence Test up to 60 days of US presence during a consecutive period that begins on or after February 1, 2020 and on or before April 1, 2020 (the “COVID-19 Medical Condition Travel Exception”)
  • The COVID-19 Medical Condition Travel Exception is claimed by attaching an IRS Form 8843, Statement for Exempt Individuals and Individuals with a Medical Condition, to their IRS Form 1040NR if they are required to otherwise file an IRS Form 1040NR. If they are not required to file an IRS Form 1040NR, such foreign nationals are not required to present an IRS Form 8843 to the IRS but are urged to document and maintain records in case the need to present the eligibility to exclude such days arises.

You may access the full alert here.

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