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오래전부터 많은 손님께서 질문해 주시는 것중의 하나가 영주권자인 남편분은 한국에서 거주하면 일을 하시고 부인과 자녀들은 미국에 거주를 할때 세금보고는 어떻게 하는냐입니다. 최근에 많은 자료를 읽고 분석을 하여 Tax Research Report를 작성했습니다. 번역상의 오해를 방지하기 위해 영어로 준비를 했습니다. 추후 시간이 되면 한글로 번역하여 올리겠습니다.

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이종권공인회계사
Jack Lee, CPA
Wiselee & Co
4 Venture, Ste 210, Irvine, CA 92618
(949) 288-3639
j.lee@wnco.net
https://www.wnco.net

Tax Research
3/12/14
Prepared by Jack Lee, CPA (이종권공인회계사)

QUESTION

Can foreign earned income exclusion be applied to a green card holder (US resident) who is working in Korea while spouse and children are staying in California?

If he turns in the green card and becomes a nonresident, is his income reportable to federal and/or California?

ISSUES

1. Tax Home
2. Federal Community Property Law
3. California Community Property Law

ASSUMPTION

South Korea does not follow community property laws.

TAX RESEARCH

Regulation 1.911-2(b) sets forth that the term “tax home” has the same meaning which it has for purposes of section 162(a)(2) (relating to travel expenses away from home). Thus, under section 911, an individual’s tax home is considered to be located at his regular or principal (if more than one regular) place of business or, if the individual has no regular or principal place of business because of the nature of the business, then at his regular place of abode in a real and substantial sense. An individual shall not, however, be considered to have a tax home in a foreign country for any period for which the individual’s abode is in the United States. Temporary presence of the individual in the United States does not necessarily mean that the individual’s abode is in the United States during that time. Maintenance of a dwelling in the United States by an individual, whether or not that dwelling is used by the individual’s spouse and dependents, does not necessarily mean that the individual’s abode is in the United States.

Regulation 1.911-5(a)(2) sets forth the amount of excludable foreign earned income is determined separately for each spouse under the rule of Regulation 1.911-3 on the basis of the income attributable to the services of that spouse.

Regulation 1.911-5(b) sets forth that the amount of excludable foreign earned income of a husband and wife with community income is determined separately for each spouse in accordance with paragraph (a) of this section on the basis of income attributable to that spouse’s services without regard to community property laws.

IRC Section 879(a) partially states that in the case of a married couple or both of whom are nonresident alien individuals and who have community income for the taxable year, such community income shall be treated as follows (1) Earned income (within the meaning of section 911(d)(2)), other than trade or business income and a partner’s distributive share of partnership income, shall be treated as the income of the spouse who rendered the personal services…

Pursuant to California Revenue and Taxation Code 17024.5, California does not allow federal’s foreign earned income exclusion. Taxpayers must include the IRC Section 911 amount as an addition to income on Schedule CA, California Adjustments.
California Form 540NR Booklet 2013, page 3 provides if you file a joint tax return for federal purposes, you may file separately for California if either spouse was a nonresident for the entire year and had no income from California sources during 2013.
Community Property States: If the spouse earning the California source income is domiciled in a community property state, community income will be split equally between the spouses. Both spouses will have California source income and they will not qualify for the nonresident spouse exception

According to California court case of Appeal of Roy L. and Patricia A. Misskelley, 84-SBE-077, May 8, 1984, if one spouse is a resident of California and the other spouse is domiciled in a community property state outside of California, the California spouse is liable for California income tax on his or her one-half community property interest in the other spouse’s earnings.

— To be continued