Oil Rig Manager Does Not Qualify As Foreign Resident

This post was originally published on Forbes

One of my more antediluvian attitudes, which I find quite embarrassing, is a tendency to think of certain jobs as, well, manly, even though I am quite aware that they can be performed by women, who do not thereby make themselves manly.  More often than I should, I quote Samuel Johnson's observation that "Every man thinks meanly of himself for not having been a soldier, or not having been at sea."  In today's world, there are other jobs that have that type of allure to them, something that you would like to have done, if there were a way to have done it without actually doing it.  Working on an oil rig qualifies.  That may account for my interest in the Tax Court decision in the case of Joel Evans.  It is of practical interest to people who might consider themselves expatriates, whose status as such is a little dubious.  The decision has not attracted a lot of interest, allowing me to forgive myself for being slow getting to it.

Mr. Evans was facing a tax deficiency for the years 2007-2010 of just over $31,000 and accuracy penalties just over $6,200. The issue is over whether the income that he earned in Russia can be excluded under the foreign earned income rules.  Here is some of the story.

In 2006 petitioner was promoted to a management position at Parker's facilities on Sakhalin Island in Russia. In this capacity petitioner supervised both land and offshore rigs. Sakhalin Island is a remote location, and weather conditions there are harsh. Petitioner's base of operations was Yuzhno, a relatively large city. He continued working at this Sakhalin Island post through 2010.
Petitioner's work schedule during 2007-2010 consisted of alternating 30-day periods on and off duty. During his on-duty periods he lived in employer-provided housing. He lived initially in a four-bedroom apartment in Yuzhno provided by Parker, which he shared with several other Parker employees. He later lived in two other staff houses. Parker provided him with a car and a driver because his Russian visa did not permit him to drive.
Roughly three times a year petitioner spent one to three weeks on an off-shore drilling platform. During these periods he slept on the platform and ate employer-provided meals. When on land petitioner occasionally interacted with the local population of Sakhalin Island as time and circumstances allowed. He learned some basic Russian phrases but generally relied on translators provided by Parker. He and his first wife were divorced in 2007, and he sometimes dated Russian women after that time.

The issue was whether his income qualified for the foreign earned income exclusion.  There are two possible he could qualify.  One would be to establish that he was a bona fide resident of a foreign country.  The other was that he spent 330 days abroad during a 12 month period.  The thirty day off thirty day on schedule precluded the latter, so he had to establish bona-fide residence. It did not go well.

Petitioner's ties to Louisiana during 2007-2010 were at least as strong as, if not stronger than, those of the taxpayer in Lemay. Throughout this period petitioner owned a house in West Monroe that he had built. While he was overseas his first wife, his second wife, and his daughter lived in this house or in his parents' house, also in West Monroe. During his off-duty periods petitioner regularly returned to West Monroe for an average of 23 days per period to be with his [*11] family. His business affairs were generally handled by his mother, whose address in West Monroe he used as his mailing address. His driver's license, voter registration, bank accounts, and motor vehicles were all centered in Louisiana. His ties to Sakhalin Island, by contrast, were entirely transitory and did not extend much beyond the bare minimum required to perform his duties there

On the plus side, the Tax Court gave him a pass on the accuracy penalty.  I think the IRS is often too quick to assert the accuracy penalty and that it was really inappropriate in this case.

Petitioners' tax returns for all four years were prepared by a competent tax professional. His mother, acting under a power of attorney, made full disclosure to this professional of all relevant facts concerning petitioner's employment in Russia. The return preparer advised that petitioner's wages earned in Russia were eligible for exclusion under section 911(a). Although this advice was incorrect, [*17] this is a technical area of tax law, and we are satisfied that petitioners reasonably relied on the advice they were given. Petitioners have carried their burden of proving that the accuracy-related penalty does not apply.

I asked Rachel Millios who works for KPMG Global Mobility Services and who, unlike me, sigh, was a soldier with two tours in Iraq, who found the case very interesting.  She referred me to Olivier Wagner who wrote::

I see the abode as being similar to the domicile (used in state residency issues). That is a place where you will return after temporary absences.
If you spent 30 days in Russia and 30 days in the US, and again, question is if you really didn't have any obligation and were left alone, where would you go - in this case the US (due to the strongest economic, family, and personal ties). Hence, the abode was in the US, not in Russia.
More generally, people who work in places where conditions are inhospitable and the likelihood that that would have gone to such hostile conditions - if it wasn't for their job - is low will have a very difficult time convincing the IRS that they qualify for FEIE due to the bona fide residence test (but they can still use the physical presence test if they qualify based on days).
I saw the case of military contractors (not government employees, but work on US military bases in war zones). I know that the government employees have their own rules (which I don't know but I'm sure you know them inside/out) but private contractors fall under the regular FEIE rules.

It is pretty clear that Mr. Evans would also have lost if this had been a state domicile case, so maybe all that domicile study I have been doing has other applications.