Snow Bird Close to 183 Day Mark

ryanm · Post by **ryanm** » Thu Sep 01, 2016 11:35 am

Iâ€™m a Canadian â€œsnow birdâ€ and may end up staying more than 183 days in the US this year. Normally I always stay less than 4 months to make sure I donâ€™t get caught by the substantial presence test, but this year I may have to stay longer for family reasons.

If Iâ€™m over the 183 day mark will I have to file a 1040NR, 1040, or anything else?

If so, what income if any do I need to report on a US return?

I have no US income just Canadian income.

Thanks in advance.

nelsona · Post by **nelsona** » Thu Sep 01, 2016 1:45 pm

You will have to file a 1040NR which will only report your US income, which will be NIL. You will include an 8833 form stating that they although you meet the IRS definition of resident (by being in US 183 days in the year) you meet the treaty definition of Cdn tax resident rather than US.

If you meet SPT but do NOT stay 183 days in the year (ie. you meet SPT by the 3-year formula), instead you would file an 8840, which would explain the same thing as the 8833. But once you hit 183 day mark in ayear you cannot use 8840 for that year, you must file 1040NR and 8833.

ryanm · Post by **ryanm** » Thu Sep 01, 2016 3:23 pm

Thanks for the quick reply.

I took a look at the 8833 form you mentioned. Because Iâ€™m retired and have no job in either country, will this be an issue trying to prove my ties are stronger in Canada? Iâ€™m divorced, but have family in both US and Canada, and a small RRSP in Canada. The only other thing I have in the US is a bank account.

If I stay longer than 183 days will this be a problem from a visa point of view? I think my visitor visa is only good for 6 months.

nelsona · Post by **nelsona** » Thu Sep 01, 2016 3:40 pm

As long as you have a full-fledged home in Canada (which is one of the conditions to allow you to enter into US as a snowbird, btw), you are considered a Cdn resident until you lose that residence (which you aren't allowed to do and still be allowed to enter US). So that circular logic makes you a Cdn resident.

You should not overstay the time you told the officer, and certainly not the date that was on your admission form (I-94). You could get in trouble next time you try to come down.