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United States: Asked and answered, IRS expands medical condition exception to include US days of presence related to COVID-19

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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.

Contents

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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Simon Beck is a partner and chair of the North America Wealth Management Group at Baker McKenzie's New York office. Simon is an international tax and trust lawyer with vast experience working in the world's trust and financial centers. He has also practiced in Miami, London, Monte Carlo and Madrid, and was head of Legal, Compliance and Trust & Fiduciary Services for Coutts, one of the world’s leading private banking institutions, prior to joining Baker McKenzie. Simon lectures regularly on trust, financial service and compliance issues at global wealth management and international trust and estate planning conferences around the world.

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Ceci Hassan is a partner in Baker McKenzie’s North American Tax Practice Group, and a member of the Global Wealth Management sub-practice. She advises and represents private clients, family offices, trusts companies and businesses globally, with a particular focus on clients and individuals in Latin America and Europe. Ceci is also fluent in Spanish.

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Michael is Counsel in the New York office of Baker McKenzie and a member of North America's Employment and Compensation Practice, as well as its North America Tax Practice. Michael spent more than 30 years at Big Four accounting firm, serving as a tax, compensation and benefits advisor to C-suite executives and Human Resources leaders at CAC 40/Fortune 100 companies. In addition, he advised on tax issues for over 35 international law firms and their partners, as well as numerous artists and public figures. A dual French-US national, Michael practiced in various leadership roles at his prior firm in both the US and Paris.

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Olga Sanders is an associate in the International Tax and Global Wealth Management practice groups of Baker McKenzie New York. Prior to joining the Firm, she advised clients on the design and taxation of executive compensation, employee benefits and pensions.

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