Form 8843: who must file it, and when

Form 8843, Statement for Exempt Individuals and Individuals With a Medical Condition, exists because of the substantial presence test. Under that test you are a U.S. resident for tax purposes if you were physically present in the United States on at least 31 days during the year and 183 days over three years, counting every day of the current year, one third of the days in the year before and one sixth of the days in the year before that.

Days on which you are an exempt individual do not count toward that total. The IRS is explicit that the term does not mean exempt from U.S. tax. It describes people, such as students, teachers and trainees on certain visas, whose days are left out of the residency count, and Form 8843 is where you explain to the IRS why yours should be.

It is a statement, not a tax return. It has no income lines and calculates no tax, which is why people with no U.S. income at all still file it.

If you exclude days of presence as a student, teacher, trainee or professional athlete, or because a medical condition that arose while you were here kept you from leaving, you file Form 8843 for that year. In practice that covers the following people.

Neither exemption is open-ended, and both count calendar years: a year counts if you were exempt for any part of it. When the exemption runs out, your days start to count, and if you meet the substantial presence test you are a resident alien for tax purposes.

As a student, you cannot exclude days once you have been exempt as a teacher, trainee or student for any part of more than five calendar years, unless you show that you do not intend to reside permanently in the United States and have substantially complied with your visa. That showing goes on a statement attached to the form, and the IRS weighs facts such as a closer connection to another country and any steps you have taken toward a green card.

As a teacher or trainee, you cannot exclude days if you were exempt as a teacher, trainee or student for any part of two of the six preceding calendar years. The exception is narrow: you must have been exempt in no more than three of those six years, and a foreign employer must have paid all of your compensation this year and in each earlier year you were here as a teacher or trainee.

If you file Form 1040-NR, Form 8843 goes with the return and is due with it. In that case you can skip the visa, citizenship, passport and day-count lines (1a through 4a) if Schedule OI of your Form 1040-NR already answers them; the rest of the form is still completed.

If you have no return to file, you mail Form 8843 by itself to the Department of the Treasury, Internal Revenue Service Center, Austin, TX 73301-0215. It is due when Form 1040-NR would be due: April 15 if you received wages subject to U.S. income tax withholding, June 15 if you did not. A student or family member with no U.S. wages therefore files by June 15.

Sign the form only when you file it by itself. It asks for a U.S. taxpayer identification number only if you have one, so a family member without an SSN or ITIN can still file.

There is no fine for missing Form 8843. What is at risk is the exclusion itself. The IRS’s substantial presence test guidance says that if you do not file Form 8843 on time, you cannot exclude the days you were present as an exempt individual, unless you can show by clear and convincing evidence that you took reasonable steps to learn about the requirement and significant steps to comply with it.

If those days count, you can meet the substantial presence test and be treated as a U.S. resident for the year. That changes which return you file and how your income is taxed, and for F-1, J-1 and M-1 students who work, the exemption from Social Security and Medicare tax does not apply to students who become resident aliens.

Form 8843 reports days, not income. If you had income that is subject to U.S. tax, such as wages, tips or a taxable scholarship or fellowship grant, you also file Form 1040-NR and attach Form 8843 to it. Income that a tax treaty exempts still has to be reported on a return, and the IRS says there is no minimum amount of income that triggers a filing requirement for a nonresident student or scholar.

If your only U.S. income is interest from a U.S. bank or credit union, or a scholarship that is not taxable at all, the IRS says a return is not required. Form 8843 on its own is then the whole filing.