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PLR 201105011 Allows Re-Election of Revoked Code § 911 Foreign Earned Income Exclusion

Code § 911 permits certain taxpayers to elect to exclude from gross income their foreign earned income, and housing cost amounts.  The election applies to the taxable year for which it is made and for all subsequent taxable years, unless revoked by the taxpayer. Code § 911(e)(2) provides that once revoked, the election may not be made again by the taxpayer until the sixth taxable year after the year in which the revocation was made.

However, Treas. Reg. § 1.911-7(b)(2) provides that if an individual revokes an election under Treas. Reg. § 1.911-7(b)(1), and desires to re-elect the same exclusion within the next five years, the individual must obtain permission by requesting a ruling.  The  I.R.S. may permit the taxpayer to re-elect the foreign earned income exclusion before the sixth year after considering all of the facts and circumstances.   Treas. Reg. § 1.911-7(b)(2) provides that relevant facts and circumstances may include a period of United States residence, a move from one foreign country to another foreign country with differing tax rates, a substantial change in the tax laws of the foreign country of residence or physical presence, and a change of employer.

In PLR 201105011, the taxpayer lived and worked in Country X from Year 1 to Year 3.  In Year 4, the taxpayer revoked his Code § 911 election on his U.S. federal income tax return.  The taxpayer moved to Country Y in Year 5 and then, to Country Z.  The individual income tax rate in Country Y was substantially higher than the individual income tax rate in Country Z.

Under these circumstances, the I.R.S. allowed the taxpayer to re-elect the foreign earned income exclusion for year 6 and subsequent years.