Hi,

In 2007, I was present in the US for 122 days.
- Came to the US on 21 July 2007 and left on 28 October 2007.
- Came again on 10 December 2007 and intend to stay here till December 2008.

I was not in the US in 2006, and was in the US for 17 days in 2005.

While calculating the substantial presence test for the first year choice, do I have to consider only 1/3 of the days I was present in the US in 2007?

Have I already qualified to make the "first year choice" or do I have get an extension for filing my return?

Thanks in advance
Indischer

The facts of this example are great. I strongly suspect that this is an exam question. Good luck on the exam.

Since I did not get an answer in this forum, I called up the IRS. They said that I do not need to get an extension for making the first year choice, since I have spent sufficient days in the US in 2007 & 2008.

The helpdesk at the IRS is great, though they may put you on hold for quite some time. Their number is 1-800-829-1040.

By the way, this was not an exam question.

If you are Single and you have work visa, then you should file nonresident tax return for 2007. If you go for First Year Choice, you only become Dual Status. On Dual status also you won't get standard deduction.

If you are married, only then you can file resident tax return as Married Filing Jointly.

You do not qualify for the first year choice. You were present in the U.S. 122 days during 2007. You must have been present in the U.S. at least 75 percent of the number of days in the "testing period." The testing period begins on the first day of the 31 consecutive day period in the U.S. (in your case July 12) and ends on the last day of the year. There are a total of 164 days during your testing period. Seventy-five percent of the days in your testing period equals 123 days. Since you were not present in the U.S. for at least 123 days, you do not qualify to make the first year election. See Code § 7701(b)(4)(A)(iv)(II).