Canadian snowbirds must navigate the complex rules surrounding the number of days they are allowed to spend in the US. The Altro LLP team frequently guides clients through the variety of issues related to this question so they can make informed decisions about the amount of time they spend stateside.
The implications of surpassing the number of days allowed in the US comes with significant tax, estate, immigration and medical coverage ramifications. There are two rules for Canadian snowbirds to consider.
First, Canadians who meet the criteria of the Substantial Presence Test (SPT) may be considered US residents for tax purposes by the Internal Revenue Service (IRS). To be considered substantially present in the US, you must be in the US for at least 31 days during the current taxation year and a total of 183 days or more during a three-year period that includes the current year and the two years preceding it.
The days are calculated by adding all the days in which you were present in the current taxation year, plus 1/3 of the days you were present in the prior year, plus 1/6 of the days you were present in the year before that. If the result is 183 days or more, then you are considered substantially present and thus a US tax resident. You can use the calculator below to help determine if your meet the SPT.
However, if you can clearly show that you have a closer connection to a country other than the US, then the IRS will treat you as a non-resident alien even if you meet the SPT. In order to claim the exemption, you must file Form 8840 with the IRS.
For the USCIS immigration standpoint please refer to our article entitled Dispelling the Myth of the “30 Day Rule” for Canadian Snowbirds. Canada and the US both track the number of days that visitors spend inside their borders, and they share this information with each other, making it important for all snowbirds to keep their own detailed report of how many days they have been in the US in case inaccuracies arise.
Additionally, most provincial health ministries require 183 days of physical presence in their respective provinces in order to provide free health care coverage. Exceptions include Ontario, which requires 153 days in each of the two consecutive years immediately before the absence, and Newfoundland and Labrador, which requires 122 days.
Provinces also have different distribution requirements for the total days you can be absent. While some demand physical presence for 183 days per calendar year, others demand the same 183 days, but in any 12-month period.
Altro LLP regularly advises snowbirds about the above issues. We have extensive experience devising and implementing immigration, tax and estate plans for Canadians who frequently visit the US in order to ensure that they continue to receive the benefits of spending extended periods of time in both Canada and the US.
In order to calculate if you meet the Substantial Presence Test, use the calculator below.