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As long as your wife was in the foreign country 330 days in 2008 then there should be no problem with claiming the exclusion.
we arrived in the foreign country in July 2008, and she was present in all of 2009.
in 2010 she was not outside the US for more than 330 days, but shouldn't she fullfill the Bona Fide resident classification because of 2009?
Advise your wife to complete the 2009 as soon as possible since it is an elective and not automatic. This means that she must file to recieve the exclusion. If you were in the country for all of 2009 then the exclusion time requirement is met.
then we should apply for the physical presence or bona fide residence for 2009?
The physical presence is determined on days out side the US. Bonafide resident would require her to be outside the US for an uninterrupted tax year.
if she uses physical presence for 2009, can she then change to bona fide resident for 2010?
The physical presence test will not work if she were not outside the US for 330 days in a tax year and she does not meet the bonafide for 2010 or the physical
She could but you already said that she was not in the foreign country in 2010 for the entire year
she was outside the US for 330 days in 2009
2009 is fine
2010 is not applicable for the exclusion under either
how come not for 2010?
Because she was back in the US
Each year stands for it's own time frame
so she has to pay taxes on the earnings for 2010?
She would have needed to go to the foreign country for a length of time that is to work for an indefinite or extended period and you set up permanent quarters there for yourself and your family, you probably have established a bona fide residence in a foreign country, even though you intend to return eventually to the United States. If she returned to the US and earned income in the US then she was not working in a foreign country.
she didn't earn income in the US
she is a teacher and returned home during the summer to get ready for our wedding
we have been continuosly living abroad since July 2008 and still are abroad
Then she could claim the bonafide resident. Let me ask, you two do not work for the US government directly do you?
The first time she returned to the US was April 2010, and then June 2010 to get ready for our wedding
she works for an international school
How about you?
not owned by the government
I work for a art gallery
and only worked in 2010, not 2009
we got married in 2010, so will file jointly for that year
If she did work for the US Govt or any agency of the US then she can not claim the exclusion. US govt employees overseas are not allowed to use the exclusion.
no she did not work for the government
Good, filing joint is correct for 2010. In the future always check both ways (joint or separate) to make sure that you use the best way.
Tell her to claim bonafide resident on 2009 and then use same for 2010
since I am not filing for 2009, what happens for me?
since its a joint file for 2010, and she is claiming bona fide?
Since you did not work in 2009 you are not required to file a return. If she supported you then she could claim you as a dependent but look first to see if her income is all excluded. If it is not then she could claim you as a dependnet. For 2010 you will each have your own 2555 forms and each use bonafide
will they require follow up documents after we file?
Not really. Once you file the returns the only additional info would be if the return was chosen for audit. But that is not something that happens automatically just becaus eyou use 2555 form. I have many clients that use 2555 and have never been audited.
what should we keep records of, if they chose to audit at some point?
Copies of your returns and all paperwork used to calculate your income. For any return if you use and expense to deduct then make sure you keep a copy of the recipt or documentation to substantiate.
do they tend to audit more people who file late, for example my wife filing 2009 now? Or does that not really matter?
Not really. From year to year the IRS chooses certain areas of tax to look at. They do not publish those areas. They do have 3 years from the date of the filed return to audit.
should we file the 2555ez?
If the EZ is applicable. If you are not claiming housing too then the EZ is fine.
one last question, I think we need an extension to get everything together, should we just file the 2350 or is there a different form?
As long as there is no tax balance due on the return then you will be fine. If you file the 2350 then someone will be waiting for the return. Sort of like placing a flag yourself on the return. Just sit down ASAP and get that 2009 and 2010 return completed. Unless you have alot of other info to get together the returns should not take very long to complete.