The IRS has published frequently asked questions (FAQs) that provide relief for certain US business activities conducted by a nonresident alien or foreign corporation when the activities were only conducted in the US due to COVID-19-related travel disruptions (Travel Disruptions). The FAQs state that the activities will not be taken into account for a period of up to 60 consecutive calendar days beginning on or after February 1, 2020, and on or before April 1, 2020 (the COVID-19 Emergency Period) for purposes of determining whether the individual or entity is engaged in a US trade or business or has a US permanent establishment.

The activities must have been performed by one or more individuals temporarily present in the US who would otherwise not have performed them in the US but for the Travel Disruptions. According to the FAQs, an "individual temporarily present in the United States" means an individual who is present in the US during the COVID-19 Emergency Period and who is a nonresident alien, or a US citizen or lawful permanent resident who had a tax home as defined in IRC Section 911(d)(3) outside the US in 2019 and reasonably expects to have a tax home outside the US in 2020. Affected individuals should retain contemporaneous documentation on the period chosen as the COVID-19 Emergency Period.

Concurrently with the FAQs, the IRS released two related revenue procedures, which provide that:

• For purposes of determining both US tax residency and whether an individual qualifies for tax treaty benefits for income from personal services performed in the US, up to 60 consecutive calendar days of US presence that are presumed to arise from Travel Disruptions may be excluded under certain circumstances (Revenue Procedure 2020-20)
• Qualification for the foreign earned income exclusion under IRC Section 911 will not be affected as a result of days spent away from a foreign country during a specified period as a result the COVID-19 emergency (Revenue Procedure 2020-27)

A Tax Alert on the FAQs and revenue procedures is forthcoming.