Foreign Earned Income Exclusion – Warnings

The Foreign Earned Income Exclusion is a wonderful tax benefit that is available to Americans working abroad. Unfortunately, many employers and employees are unwittingly over-stating the benefits and applicability of the rules with devastating consequences. The over-riding myth is, “You’re working overseas – that means you’re exempt from taxes on the income!” Some employers actually use the exclusion as a recruiting tool, touting the tax benefit as an exemption from all taxes.

This is not really true. 

When using the exclusion, it is important to understand the limits and qualifications. You can generally accept a big employer with lots of foreign employees assertion that you will qualify (though you can’t hold them accountable if you don’t.) I will assume for this article that you will qualify if you stay with your employer. I want to focus on the pitfalls that you run into even if you do qualify. Here they are:

Staying Qualified: Even if you and your employer set you up for qualification, you still, at a minimum, have to spend 330 out of a 365 day period overseas (there is a bona-fide residence test as well, but you generally won’t meet it, at least initially if you don’t meet this test). If you fail to do this, even for very good reasons, you will lose the exclusion, and all your income will be taxable. There is only one real way out of this: being forced to leave due to adverse conditions.  The IRS specifically lists those places, and there are very few! Don’t assume just because some IED’s went off near your place of work that you can pack up and go home. 

Filing Deadlines: That 365 day period above affects this too. If your first year ends after 4/15, you won’t meet the test by the filing deadline. You can get an automatic extension to 10/15, but you may need to file form 2350 if your year ends after that. If you don’t you could be subject to interest and penalties.

The Big One – There’s a MAX: The maximum credit is $120,000 (2023 amount), plus some housing expense if you have to pay for housing. Let’s assume housing is not an issue. If you go overseas on 10/2/2023, you only have 90 days overseas in 2023, so you only get 90/365 x 120,000 or $29,589 of exclusion. Anything more than that is taxable! Even with 365 days in the tax year overseas, anything over $120,000 is taxable.

The Tax Rate Can Be Higher: You figure taxes on any remaining income at the tax rate as if the exclusion was not taken, so whatever income is left after the exclusion is taxed at a higher rate. Also, if you have another job, or your spouse works, their withholding might be inadequate even if you get the full exclusion. One way of understanding the big difference here is that almost every deduction or exclusion removes money from the “top” of your income, where the taxes are higher. This exclusion removes income from the BOTTOM, where it is taxed the least, leaving the rest of your income at the “top”

It Limits Other Credits: No Earned Income Credit or Foreign Tax Credit on the same income.

Other Issues: Taking the Exclusion is an election that can be revoked, but can affect other opportunities later. They are too complex for this article, but you need expert advice if you plan on working or living abroad for a long time. You also need to make sure your state honors the exclusion (I did not research this specifically, even though I think all of them do in one form or another.)

The IRS’ Position on this can be Very Strict: This point is based on some IRS actions taken over the last few years involving the status of a taxpayers tax home in a foreign country. You see, most people think that meeting either the presence test or the bona fide residence test is enough to qualify for the exclusion. This is not true. For both tests, you have to establish a tax home in the foreign country. Put simply, you need stronger ties to the foreign country than to the United States. Factors involved in this are living quarters, community ties, financial ties, and social ties. If you have family, a home and your bank in the U.S., this does not bode well. If you live on a military base in the foreign country, and rarely leave it, this is not good either. If you are there are a one year contract, that can be trouble too. You need to establish bona fide ties in the foreign country. These can include housing, banking (keep accounts less than $10,000 at all times), friends, family, community activity etc. You can even try learning the language. This is one of those “facts and circumstances” things, so there is no definitive test for your foreign tax home, but the more you do the better you are. The longer you stay and the stronger ties you establish, the safer you will be.

Be very careful. Your employer may ask you to fill out Form 673 (or equivalent) to exempt your income from withholding.  This is what this whole article is trying to protect you from. If you file that form and you make more money than the exclusion covers, return before meeting the testing period, or have to file a tax return before meeting the test for other reasons (college financial aid, home buying) you could have a HUGE tax bill. I seen tax returns where someone made $180,000 working overseas. They received the full exclusion and still had a Federal tax bill of over $20,000!

If you know you will make less than the exclusion, you’re confident you will meet the test, you have no other significant income, and you can wait to file until you meet the test, go ahead and go exempt if you want. Otherwise, let them withhold and get the big refund later

The point is to be careful, and plan ahead. Have them withhold from your checks as though the exclusion didn’t exist, and, even if you get a refund using the exclusion, don’t spend the money for a while, since the IRS can come back and take it away. Obviously if you have a rock solid tax home in a foreign country, like wife, kids, banking and community involvement, you can be more confident meeting these tests..

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