Physical Presence test when using a 6013 (g) or (h) election

[broadwayman]

I am a Canadian that physically moved down to the US on August 1, 2005 for work. I have enough US days over the past 3 years to qualify as a resident alien of the US in 2005 but I have to file as a Canadian resident under teh treaty for the period from January 1, 2005 to July 31, 2005 becuase my family and home were in Canada (can I rely on the treaty for only part of a tax year?). My wife physically moved to the US with me in August 2005-she does not have any US days before August. I was going to file a dual status US return for 2005 (1040nr for first part with 8833 Treaty resident of Canada position plus 1040 for period from August 2005 to 12/31/05). But then I was told that I can elect to file a joint US return, Form 1040, for the entire year and take advantage of "married filing joint" tax rates (which are lower so I understand). I also have to elect under section 6013 (g) or (h) of the code because my wife is not a US resident alien or US citizen in 2005 (but she was with me in the US on December 31, 2005 . This election enables me to include her as a US resident on the 1040. HEre is the kicker. I would like to use the "physical presence test" to qualify for the "foreign earned income exclusion" and file form 2555 for 2005. I can count 330 Canadian days going back 365 days to July 31, 2004. So I can include all my pre-August 2005 Canadian income (but only for 2005) and then exclude some or all of that amount based on the mechanics of the computations (i.e. a % of $80K). What I don't know is whether I can do this. Someone told me that I cannot get the 911 exclusion if I am relying on the 6013 election because in 2004 (the other part of my 365 day period), I was not a US filer. Can I rely on a Treaty position (ie a non-discrimination clause)?

Thanks

[nelsona]

Yes.

this has been discussed dozens of times on this board.

File as any other US citizen would file if they werereturning to Us after several years abroad.

File an 8833 statement availing your self of article xxv.

You will both use the bona fide tax home test.