IRS lets a taxpayer re-elect the foreign earned income exclusion early

Plain-English summary

A U.S. citizen living and working abroad had claimed the Section 911 foreign earned income exclusion, then in a later year switched to taking the foreign tax credit instead, which counts as revoking the exclusion. Once the Section 911 election is revoked, a taxpayer generally cannot elect it again for five years without IRS permission. This taxpayer asked to re-elect sooner. Section 911(e)(2) and Treas. Reg. 1.911-7(b)(2) let the IRS consent to an early re-election based on the facts and circumstances, and the regulation specifically lists moving between foreign countries with different tax rates and changing employers as relevant factors. The taxpayer had done both, moving through several countries and employers to jobs taxed at different rates. The IRS granted permission to re-elect the exclusion for Year 5 and later years, provided the taxpayer does so within 60 days of the ruling. The IRS expressed no view on whether the taxpayer actually qualifies for the exclusion. The ruling was signed by the Office of Associate Chief Counsel (International).

Ruling snapshot

• Question: May a taxpayer who revoked the Section 911 foreign earned income exclusion re-elect it within the five-year lockout period?
• Outcome: Approved (permission granted to re-elect for Year 5 and later years if done within 60 days).
• Key authorities: IRC § 911(a), (e)(2); Treas. Reg. § 1.911-7(b)(2); Rev. Rul. 90-77.

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 202303010 [Third Party Communication:
Release Date: 1/20/2023 Date of Communication: Month DD, YYYY]
Index Number: 911.11-03
Person To Contact:
-------------------------- -----------------, ID No. ------------------
--------------------------------------- Telephone Number:
--------------------------------- ---------------------
------------------- Refer Reply To:
------------ CC:INTL:B02
------------- PLR-111569-22
Date:
October 13, 2022

             TY: -------

Legend

Taxpayer = -----------------
SSN: -----------------
Employer A = ------------------------------------
Employer B = ---------------------------------
Employer C = -----------------------------------
Country X = ---------------------
Country Y = ------------
Country Z = --------------------------
Year 1 = -------
Year 2 = -------
Year 3 = -------
Year 4 = -------
Year 5 = -------

Dear ---------------:

   This is in response to a letter received by our office on June 15, 2022, requesting

permission to reelect the foreign earned income exclusion under section 911 of the
Internal Revenue Code (the Code) for Year 5.

  The rulings contained in this letter are based upon information and

representations submitted by the taxpayer and accompanied by a penalty of perjury
statement executed by an appropriate party. While this office has not verified any of the
material submitted in support of the request for rulings, it is subject to verification on
examination.

FACTS

   Taxpayer is a U.S. citizen who lived and worked for Employer A in Country X and

claimed the foreign earned income exclusion under section 911(a) of the Internal
Revenue Code1 in Year 1. In Year 2, Taxpayer determined it was more beneficial to
receive a credit for the taxes paid to Country X than to exclude the foreign earned
income and housing cost amounts. In Year 3, Taxpayer moved to Country Y and
commenced a job with Employer B. In Year 4, Taxpayer moved to Country Z and
commenced a job with Employer C. Taxpayer’s income earned in Country Z is subject
to a lower rate of tax than it was in both Country X and Country Y.

Ruling Requested

   Taxpayer requests permission to reelect the section 911 foreign earned income

exclusion for Year 5 and subsequent taxable years.

LAW AND ANALYSIS

    Section 911(a) permits certain taxpayers to elect to exclude from gross income

their foreign earned income and housing cost amounts. The election applies to the
taxable year for which it is made and for all subsequent taxable years, unless revoked
by the taxpayer. Section 911(e)(2) provides that once the election is revoked, the
taxpayer must obtain the consent of the Secretary to reelect before the sixth taxable
year after the year in which the revocation was made.

    Treas. Reg. § 1.911-7(b)(2) provides that if an individual revokes the election to

exclude foreign earned income under Treas. Reg. § 1.911-7(b)(1), and desires to
reelect that same exclusion within the next five years, the individual must obtain
permission by requesting a ruling. The Service may permit the taxpayer to reelect the
foreign earned income exclusion before the sixth year after considering all of the facts
and circumstances. Treas. Reg. § 1.911-7(b)(2) provides that relevant facts and
circumstances may include a period of United States residence, a move from one
foreign country to another foreign country with differing tax rates, a substantial change
in the tax laws of the foreign country of residence or physical presence, and a change of
employer.

  Taxpayer effectively revoked the foreign earned income exclusion election for

Year 2 by claiming the foreign tax credit. See Rev. Rul. 90-77, 1990-2 C.B. 183. If
Taxpayer wishes to reelect that same exclusion within five taxable years after
revocation, Taxpayer may apply for consent for reelection by requesting a ruling.
Taxpayer is seeking permission to reelect the exclusion for Year 5. Taxpayer has

1 All section references are to the Internal Revenue Code in effect for the years at issue.

represented that he changed employers; and the applicable foreign income tax rates
differ between both Country X and Country Y, and Country Z.

CONCLUSION

   Accordingly, based solely on the information submitted and representations

made, Taxpayer may, within 60 days from the date of this ruling letter, reelect the
section 911 foreign earned income exclusion for Year 5 and subsequent tax years in
accordance with the rules set forth in section 911 and the regulations thereunder.

    Except as otherwise expressly provided herein, no opinion is expressed as to

whether Taxpayer otherwise satisfies the requirements of section 911, and, thus, would
be eligible to exclude his foreign earned income and housing cost amounts from gross
income. In addition, no opinion is expressed or implied concerning the tax
consequences of any aspect of any transaction or item discussed or referenced in this
letter.

    This ruling is directed only to the taxpayer requesting it. Section 6110(k)(3) of the

Code provides that it may not be used or cited as precedent. A copy of this letter must
be attached to any income tax return to which it is relevant. Alternatively, if Taxpayer
files his return electronically, he may satisfy this requirement by attaching to his return a
statement that provides the date and control number of the letter ruling.

                                   Sincerely,

                                   /s/ Kristine Crabtree

                                   Kristine A. Crabtree
                                   Senior Technical Reviewer, Branch 2
                                   (International)

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