Substantial presence test – COVID-19 relief

Substantial presence test – COVID-19 relief



Jean Kizito

Partner, Financial Services Tax

KPMG in Luxembourg


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Luxembourg banks with the Qualified Intermediary (QI) status should be aware of the Revenue Procedure 2020-20 (PDF, 63KB) that provides relief for certain individuals who remain in the United States beyond a specified number of days because of the coronavirus (COVID-19) pandemic.

The term U.S. person includes both a U.S. citizen and a resident individual. The latter includes individuals who become U.S. resident individuals due to the so called “Substantial Presence Test”. Under the substantial presence test, an individual is generally treated as a U.S. person if:

- Present in the U.S. for at least thirty-one (31) days during the tested calendar year, and;

- The sum of the following exceeds 183 days or more:

  • The number of days of U.S. presence in the tested calendar year
  • One-third of the number of days of U.S. presence in the preceding calendar year; and 
  • One-sixth of the number of days of U.S. presence in the second preceding calendar year.

Under Revenue Procedure 2020-20 (PDF, 63KB), the eligible individual who intended to leave the U.S. can exclude up to sixty (60) consecutive calendar days starting on or after February 1st, 2020, and on or before April 1st, 2020 from the substantial presence test if he/she was unable to leave due to the COVID-19 emergency travel disruptions.

In this respect, an eligible individual is an individual who

  1. was not a U.S. resident at the end of 2019, 
  2. will not be a lawful resident of the U.S. at any time during 2020; 
  3. was present in the U.S. during the COVID-19 emergency period; and
  4. will not become a U.S. resident in 2020 due to days present in the U.S. outside of the COVID-19 emergency period

The above exclusion is an element to take into account as you prepare your QI periodic review and certification. Most Luxembourg banks (with the QI status) will select 2020 for the periodic review (to be performed in 2021). Besides the actual periodic review, KPMG offers different services and tools to help you meet the QI Compliance requirements. 

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