Form 8802 demonstrate taxes were not imposed because the applicant was a resident of the foreign country

[Guille12]

Hello,

I lived in the US for 2023, but my income came from an employer in Spain. I will be filling form 1116 to take the tax credit for the taxes paid in Spain.

I need to fill form 8802 to certify US tax residency when filling taxes in Spain. However the form 8802 instruction states that if you are planning fill form 1116: "evidence must be submitted to the I.R.S. to demonstrate that the applicant is a resident of the U.S. and the foreign taxes paid were not imposed because the applicant was a resident of the foreign country".

How do I demonstrate that "foreign taxes paid were not imposed because the applicant was a resident of the foreign country"?

I will be filling a non-resident tax income in Spain, which will lower the taxes I pay. But to fill that I need the letter of US tax residency. But to get the letter it seems I need to demonstrate somehow that the taxes I paid are not because I am a Spanish tax resident. It feels like a catch-22.

Thanks

[RobertB4444]

Filing a proper income tax return for the period that the tax letter is requested for is considered proof of US residency.  So the return should accompany the application as well as the application fee and then the letter will be issued which will allow you to file the non-resident return in Spain.  It's not a Catch 22.  It's just a lot of paperwork.

Here are the instructions for the 8802 which will help with everything.

@Guille12 

[Guille12]

Thanks @RobertB4444, based on the following language from the instructions I was planning to send the 2022 income tax return as the return for 2023 is not due yet. 

“In the case of a certification year for which a return is not yet due, you filed a return for the most recent year for which a return was due.”

Then with the form 6116 submit the Spanish income tax return and finally submit the US 2023 income with the correct information for Spanish taxes (for the tax credit form 1116).

I guess I could just complete the Spanish return, not submit it, and use those numbers to complete the info in the 2023 US tax income return. Then ask submit form 8802 and complete the Spanish one.

But my question is, if I submit the 2023 tax return with the 8802 form, will that be considered sufficient for fulfill this requirement from the 8802 instructions:

“the foreign taxes paid were not imposed because you were a resident of the foreign country”

Thanks again

[RobertB4444]

Between the Spanish return and the US return that you're filing as a resident that should be plenty.

@Guille12 

[Guille12]

yes, but I cannot submit the Spanish return until I don’t get the US letter of residency.