The TRS has issued FAQs for nonresident aliens who wish to avail themselves of the Medical Condition Exception or the Medical Condition Travel Exception to the substantial presence test, i.e., the test under which nonresident aliens are taxed as U.S. residents.
The virus that causes COVID-19 has created a global outbreak (the COVID-19 Emergency) during which some alien individuals, who are present in the United States, have fallen or may fall ill with COVID-19 or experience other medical conditions or medical problems. Some of these individuals may have intended to leave the United States but were unable to leave due to a medication condition or problem, as described in section 7701(b)(3)(D)(ii). These individuals may be eligible to claim the medical condition exception to exclude certain days of U.S. presence from the substantial presence test, described in section 7701(b)(3), provided they meet the requirements described in section 7701(b)(3)(D)(ii) and section 301.7701(b)-3(c) (Medical Condition Exception). Alien individuals who are eligible to claim the Medical Condition Exception generally must file Form 8843, Statement for Exempt Individuals and Individuals With a Medical Condition, to obtain this exception, which requires a signed statement from a physician or other medical official that the alien individual was unable to leave the United States due to a medical condition or medical problem.
Due to considerations unique to the COVID-19 Emergency, it may be
difficult to obtain a signed statement by a physician or other medical official
attesting to the alien individual's inability to leave due to a medical condition.
Accordingly, these FAQs modify the requirements for completing Part V of Form
8843 for certain alien individuals claiming the Medical Condition Exception
during calendar year 2020. These FAQs also provide information regarding
relevant record keeping requirements for persons filing Form 8843 without a
physician's statement, either pursuant to these FAQs or the relief granted in
Rev. Proc. 2020-20. Rev. Proc. 2020-20, published on May 11, 2020,
provides relief for certain nonresident alien individuals stranded in the
United States due to the COVID-19 Emergency; it describes procedures for
Eligible Individuals to claim the COVID-19 Medical Condition Travel Exception,
pursuant to which an Eligible Individual can exclude a single period of up to
60 consecutive calendar days of presence in the United States for purposes of
applying the substantial presence test.
Q 1. Will an alien
individual who intended to but is or was unable to leave the United States on
the individual's planned departure date due to a medical condition or medical
problem in calendar year 2020 be required to obtain a physician's statement as
required by Part V of Form 8843?
A1. Any alien individual who is
eligible and fulfills the requirements to claim the Medical Condition Exception
may file the Form 8843 without a physician's statement to cover a single period
of up to 30 consecutive calendar days in calendar year 2020 (30-Day Medical
Condition). This FAQ does not modify the eligibility requirements to claim the
Medical Condition Exception, only the procedures for claiming the exception on
Part V of Form 8843 and only with respect to a single period of up to 30
consecutive calendar days of presence in the United States in calendar year
2020.
Pursuant to the Medical Condition Exception, any days of presence
for which an alien individual is eligible and claims a 30-Day Medical Condition
will be excluded for purposes of the substantial presence test. The exemption
from the Form 8843 requirement to obtain a physician's statement for a 30-Day Medical
Condition can be claimed in addition to the relief provided in Rev. Proc.
2020-20. The instructions to Form 8843 for 2020 will reflect the 30-Day Medical
Condition contemplated by this FAQ.
Q2. What types of
documentary evidence should alien individuals retain to support their
eligibility for the 30-Day Medical Condition?
A2. In lieu of a physician's
statement, alien individuals claiming the 30-Day Medical Condition should
retain documentary evidence that substantiates their medical condition, their inability
to leave due to the medical condition, and the period of the medical condition,
such as (i) evidence of consultations with a heath care provider (for example,
a phone bill or a text message or email from the health care provider), (ii)
receipts related to healthcare purchases, (iii) evidence of canceled or changed
travel reservations, or (iv) official medical records or written healthcare
correspondence that the individual received (for example, automated responses
instructing an individual to self-isolate). These documents should not be
submitted with the Form 8843, but alien individuals claiming the 30-Day Medical
Condition should be prepared to produce these records if requested by the IRS.
Q3. How should alien
individuals who only claim the 30-Day Medical Condition complete Part V of Form
8843 (the section of the form applicable to individuals claiming the Medical
Condition Exception)?
A3.For those claiming a 30-Day Medical Condition without claiming
relief under Rev. Proc. 2020-20 or any other excluded days pursuant to the
Medical Condition Exception, the alien individual should write "30-Day
Medical Condition" and then describe in detail the 30-Day Medical
Condition that prevented the alien individual from leaving the United States under
Line 17a in Part V of Form 8843. When determining the information to include in
line 17a, an alien individual should provide relevant information so that the
individual can clearly demonstrate qualification for the Medical Condition
Exception if the Form 8843 is later reviewed by the IRS with the corresponding
documentary evidence discussed in FAQ 2, as applicable. Lines 17b and 17c
should be completed consistently with the form's instructions. Line 18 of the
form should be left blank. As described in FAQ 2, third-party documentary
evidence of an alien individual's medical condition should not be submitted
with the form, but should be retained by the alien individual.
Q4. How should alien
individuals who claim multiple Medical Condition Exceptions complete Part V of
Form 8843?
A 4. An alien individual may be
able to claim multiple Medical Condition Exceptions and should file a single
Form 8843 enumerating all the applicable Medical Condition Exceptions on line
17a. The alien individual should attach a separate statement with respect to
each Medical Condition Exception being claimed along with the relevant
corresponding information as outlined in Rev. Proc. 2020-20, in FAQ 3, or the
existing instructions, as applicable. As an example, line 17a could read:
"Condition
1: COVID-19 MEDICAL CONDITION TRAVEL EXCEPTION;
Condition
2: 30-DAY MEDICAL CONDITION,"
Lines 17b and 17c of Part V should be left blank, but the relevant
information for each applicable exception, as described in Rev. Proc. 2020-20
and in FAQ 3, along with the dates that would otherwise be reflected under line
17b and line 17c, would be included in each separate statement. Neither of
these conditions require a physician's statement, and thus line 18 should be
left blank. Note, however, if an alien individual is also claiming a Medical
Condition Exception that requires a physician's statement, the signature and
relevant information from line 18 should be included in the separate attachment
related to that medical condition.
Q5. What types of
documentary evidence should Eligible Individuals retain to support their
eligibility for the relief provided under Rev. Proc. 2020-20?
A5. An Eligible Individual
claiming relief under Rev. Proc. 2020-20 should retain evidence of the
individual's presence in the United States during the individual's claimed
COVID-19 Emergency Period (such as a Customs and Border Protection Form I-94
showing the individual's entries into the United States, hotel receipts, or
travel reservations, including confirmation of changes or cancellations). If
the Eligible Individual was actually ill or advised to self-quarantine in the
United States during the individual's excluded days under the revenue
procedure, he or she may also retain the documents described in FAQ 2 to
demonstrate presence in the United States through U.S.-based medical records
and treatments, though failure to document an actual illness will not affect
eligibility to claim relief under Rev. Proc. 2020-20.
An Eligible Individual who does not qualify for the presumption of an intent to leave the United States outlined in section 4.02 of Rev. Proc. 2020-20 (meaning, the individual has applied, or otherwise taken steps, to become a lawful permanent resident of the United States but is not yet a lawful permanent resident), should also retain any documents that may support a "facts and circumstances" analysis of the Eligible Individual's intent to leave the United States under section 301.7701(b)-3(c)(2). These documents should not be submitted with the Form 8843, but Eligible Individuals claiming relief under Rev. Proc. 2020-20 should be prepared to produce these records if requested by the IRS.
Marini & Associates, P.A.
www.TaxAid.com or www.OVDPLaw.com
or Toll Free at 888-8TaxAid
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