In Cross Border India Dual Resident Treaty

---
name: in-cross-border-india-dual-resident-treaty
description: "For an individual with US and Indian tax connections who needs to fix Indian residential status and claim credit in India for tax paid in the US, and for the adviser preparing that claim."
license: "AGPL-3.0-or-later (code) / OpenAccountants Guide License v1.0 (content)"
metadata:
  source: openaccountants
  openaccountants_url: "https://www.openaccountants.com/skills/in-cross-border-india-dual-resident-treaty"
  jurisdiction: "IN"
  tax_year: "2026"
  last_updated: "2026-09-06"
---

# US-India dual residence and foreign tax credit in India

## US-India dual residence and foreign tax credit in India

This Guide covers two linked questions for a person taxed in both the United States and India: which Indian residential status applies for the year, and how credit for foreign tax paid is claimed on the Indian return. Figures are for tax year 2026. Where a page on incometax.gov.in states its own period, that period is used and named in the table: the residency day tests below are quoted from the Income Tax Department's "Non-Resident Individual for AY 2026-2027" page and from the ITR form notified in April 2026, and the department's Non Resident FAQ states that for FY 2026-27 residential status is determined under the Income Tax Act, 2025. Foreign tax credit rules quoted below are stated on the department's Form 67 pages under Rule 128 of the Income Tax Rules, 1962.

## Who this is for

Individuals who are resident taxpayers in India and have paid tax in a country or specified territory outside India, including the United States: the Form 67 page states that credit is available to "a resident taxpayer" who has foreign tax paid "by way of deduction or otherwise". It is also for advisers first testing whether the client is resident at all, using the day-count tests in the tables below. It is not for a person who is non-resident in India and is seeking treaty relief only — that person furnishes the information form described in the fourth table, not the foreign tax credit statement. This Guide does not decide the client's US residency or the treaty tie-breaker; neither incometax.gov.in nor gstcouncil.gov.in carries the India-US treaty residence article text on the pages read for this Guide, so nothing is stated here about it.

## Rates, thresholds and deadlines

### Residency day tests as printed in the notified return form

**Residency day tests as printed in the notified return form**  _(https://www.incometax.gov.in/iec/foportal/sites/default/files/2026-04/Notification%20No.46_2026.pdf)_

| What | Value | Note |
| --- | --- | --- |
| Source | all figures below | https://www.incometax.gov.in/iec/foportal/sites/default/files/2026-04/Notification%20No.46_2026.pdf |
| Resident — first stay test | "You were in India for 182 days or more during the previous year" | form cites section 6(1)(a) |
| Resident — second stay test | "You were in India for 60 days or more during the previous year, and have been in India for 365 days or more within the 4 preceding years" | form cites section 6(1)(c), where Explanation 1 is not applicable |
| Status options on the form | Resident; Resident but not Ordinarily Resident; Non-resident | residential status block of the notified form |

### Day-test substitutions for Indian citizens and persons of Indian origin

**Day-test substitutions for Indian citizens and persons of Indian origin**  _(https://www.incometax.gov.in/iec/foportal/help/individual/return-applicable-0)_

| What | Value | Note |
| --- | --- | --- |
| Source | all figures below | https://www.incometax.gov.in/iec/foportal/help/individual/return-applicable-0 |
| Page's own year | AY 2026-2027 | page title "Non-Resident Individual for AY 2026-2027" |
| Second test as stated | in India 60 days or more during the previous year and 365 days or more for 4 years immediately preceding the previous year | page's wording of condition (2) |
| Visiting Indian citizen or person of Indian origin | the period of 60 days "shall be substituted with 182 days" | same concession for an Indian citizen leaving India as a crew member or for employment outside India |
| Where total income other than income from foreign sources exceeds ₹ 15 lakh | 60 days substituted with 120 days | page attributes this to the Finance Act, 2020, w.e.f. Assessment Year 2021-22 |
| Outcome if neither condition met | treated as Non-Resident in that previous year | page's wording |

### Deemed residence and the year the new Act applies

**Deemed residence and the year the new Act applies**  _(https://www.incometax.gov.in/iec/foportal/help/all-topics/e-filing-services/non%20resident%20-faq)_

| What | Value | Note |
| --- | --- | --- |
| Source | all figures below | https://www.incometax.gov.in/iec/foportal/help/all-topics/e-filing-services/non%20resident%20-faq |
| Deemed resident income threshold | total income exceeding Rs 15 lakh, other than income from foreign sources | page cites section 6(1A); person must also be "not liable to tax in any other country by reason of domicile, residence or similar criteria" |
| FY 2026-27 residential status | determined under the provisions of the Income Tax Act, 2025 | page states period of stay from 1 April 2026 onwards is considered for this purpose |
| Look-back for the 60 + 365 test in FY 2026-27 | stay during FY 2025-26 and earlier years also taken into account | page's wording on applying the "60 days + 365 days" test |
| Continuity tests | "nine out of ten preceding years" and "729 days in seven preceding years" continue to look back to earlier years | page states preceding years may include years under the repealed Act |

### Foreign tax credit statement

**Foreign tax credit statement**  _(https://www.incometax.gov.in/iec/foportal/help/statutory-forms/popular-form/form67-um)_

| What | Value | Note |
| --- | --- | --- |
| Source | all figures below | https://www.incometax.gov.in/iec/foportal/help/statutory-forms/popular-form/form67-um |
| Form name | Form 67 | statement of foreign tax paid, under Rule 128 of the Income Tax Rules, 1962 |
| Who may claim | a resident taxpayer with foreign tax paid in a country or specified territory outside India | page's stated purpose |
| Deadline | on or before the due date specified for furnishing the return of income under sub-section (1) of Section 139 | page's wording |
| Mode | online only, through the e-Filing portal | "Form 67 can only be submitted through online mode" |
| Mandatory attachment | copy of the certificate or statement and proof of payment / deduction of foreign tax | page states it is mandatory to attach these to proceed further |
| Second trigger for filing | carry backward of loss of the current year resulting in refund of foreign tax for which credit was claimed in earlier previous years | page's wording |

### Treaty relief information form for non-residents under the Income Tax Act, 2025

**Treaty relief information form for non-residents under the Income Tax Act, 2025**  _(https://www.incometax.gov.in/iec/foportal/newformpage/forms/form41-UM)_

| What | Value | Note |
| --- | --- | --- |
| Source | all figures below | https://www.incometax.gov.in/iec/foportal/newformpage/forms/form41-UM |
| Form name | Form 41 | page states it is the prescribed form for a non-resident to furnish particulars to claim relief under a DTAA |
| Statutory basis | section 159 and Rule 75; details mandated under section 159(8) of the Income tax Act, 2025 | page's wording |
| Who files | all non-resident registered users on the e-Filing portal | non-residents without PAN file through a separate login category |
| Detail required | Tax Identification Number of the applicant in the country or region of his residence | listed in the form's particulars |
| Period selected when filing | Tax Year (T.Y.) | page's step 5 |

### Return due date and late fee stated on the ITR-4 page

**Return due date and late fee stated on the ITR-4 page**  _(https://www.incometax.gov.in/iec/foportal/help/all-topics/e-filing-services/file-itr-4-sugam-online)_

| What | Value | Note |
| --- | --- | --- |
| Source | all figures below | https://www.incometax.gov.in/iec/foportal/help/all-topics/e-filing-services/file-itr-4-sugam-online |
| Due date stated | "For AY 2026-27 (FY 2025-26) the due date of filing of ITR-4 is 31st August 2026" | stated on this page for ITR-4 only; the page does not state the date for other ITR forms |
| Late filing fee | late filing fee of up to ₹5000 | applies where the return is not filed within the due date u/s 139(1); interest on tax liability may also apply |

## The method, step by step

1. Fix residential status for the year first, using the day tests printed in the notified return form at https://www.incometax.gov.in/iec/foportal/sites/default/files/2026-04/Notification%20No.46_2026.pdf and the substitutions for visiting Indian citizens and persons of Indian origin at https://www.incometax.gov.in/iec/foportal/help/individual/return-applicable-0 — the day counts and the income substitution are in the first two tables above.
2. For a year beginning 1 April 2026, apply the Income Tax Act, 2025 to that determination, counting stay from 1 April 2026 onwards but still looking back to earlier years for the 60 + 365 and continuity tests, as set out at https://www.incometax.gov.in/iec/foportal/help/all-topics/e-filing-services/non%20resident%20-faq — see the third table for the deemed-residence income threshold.
3. If the client is resident, register or log in on the e-Filing portal with a valid user ID and password; the Form 67 page at https://www.incometax.gov.in/iec/foportal/help/statutory-forms/popular-form/form67-um lists as prerequisites a registered user on the e-Filing portal, PAN and Aadhaar linked, and PAN status "Active".
4. Assemble the records the form demands before starting: the certificate or statement of foreign tax and proof of payment or deduction of that tax, which the same page states must be attached to proceed.
5. File Form 67 online: e-File > Income Tax Forms > File Income Tax Forms, select Form 67, select the Assessment Year, complete Part A with name, PAN or Aadhaar, address and assessment year plus receipt details of the foreign income and the foreign tax credit claimed, then attach the certificate and proof — steps as given at https://www.incometax.gov.in/iec/foportal/help/statutory-forms/popular-form/form67-um.
6. Submit Form 67 on or before the due date for the return under section 139(1), the time limit confirmed at https://www.incometax.gov.in/iec/foportal/help/statutory-forms/popular-form/form67-faq — the deadline row is in the fourth table.
7. E-verify the form using EVC or DSC; the department's forms FAQ at https://www.incometax.gov.in/iec/foportal/formsfaqs states both modes and that an Authorized Representative may be added to file Form 67 on the taxpayer's behalf.
8. File the income tax return itself by the due date under section 139(1); the due date and late fee stated by the department for ITR-4 for AY 2026-27 are in the last table at https://www.incometax.gov.in/iec/foportal/help/all-topics/e-filing-services/file-itr-4-sugam-online.
9. If the client turns out to be non-resident in India and is claiming relief under the India-US DTAA rather than foreign tax credit, furnish Form 41 instead, following the panels and Tax Year selection described at https://www.incometax.gov.in/iec/foportal/newformpage/forms/form41-UM.

## Ask the client first

- How many days were you physically in India in the year, and in each of the four preceding years, and in the seven and ten preceding years?
- Are you an Indian citizen or a person of Indian origin, and did you come to India on a visit, leave for employment outside India, or leave as a crew member of an Indian ship?
- What is your total income for the year excluding income from foreign sources, and does it cross the deemed-residence threshold in the third table?
- Do you hold, for each item of US tax you want credited, a certificate or statement of the tax and proof of its payment or deduction, in a form you can attach to the online filing?
- Is your PAN active and linked to Aadhaar, and will the return be filed by the section 139(1) due date, since the credit statement must be in by that same date?
- Did any current-year loss carried back result in a refund of foreign tax for which credit was claimed in an earlier year?

## When to refuse or refer

- Applying the residence tie-breaker in the India-US treaty: the pages on the allowed official hosts read for this Guide do not set out the treaty's residence article, so the tie-breaker order and its tests are not stated here.
- Computing the amount of credit, per-country limits, apportionment against Indian tax, or the exchange rate to convert US tax into rupees: the Form 67 pages describe who files, what is attached and by when, and are silent on the computation, so no figure or method for it appears in this Guide.
- US-side obligations, including US returns, US residency certification, elections and any US filing dates: these are not on incometax.gov.in or gstcouncil.gov.in and are outside this Guide.
- Disputed or dual-status years needing mutual agreement procedure, advance ruling, or a competent authority approach.
- Foreign tax credit claimed by a company, firm, trust or other non-individual, and credit against alternate minimum tax: only individual residency and the Form 67 filing process are covered above.
- Late or omitted Form 67 for an earlier year, revised or updated returns, and condonation: the pages cited state the time limit but not the consequences of missing it.
- Any GST question: gstcouncil.gov.in carries nothing bearing on personal residency or foreign tax credit, so nothing is stated for it.

## Sources

- https://www.incometax.gov.in/iec/foportal/sites/default/files/2026-04/Notification%20No.46_2026.pdf (residency day tests as printed in the notified return form)
- https://www.incometax.gov.in/iec/foportal/help/individual/return-applicable-0 (day-test substitutions for Indian citizens and persons of Indian origin)
- https://www.incometax.gov.in/iec/foportal/help/all-topics/e-filing-services/non%20resident%20-faq (deemed residence and the year the new Act applies)
- https://www.incometax.gov.in/iec/foportal/help/statutory-forms/popular-form/form67-um (foreign tax credit statement)
- https://www.incometax.gov.in/iec/foportal/help/statutory-forms/popular-form/form67-faq (Form 67 time limit)
- https://www.incometax.gov.in/iec/foportal/formsfaqs (e-verification and authorised representative for Form 67)
- https://www.incometax.gov.in/iec/foportal/newformpage/forms/form41-UM (treaty relief information form for non-residents under the Income Tax Act, 2025)
- https://www.incometax.gov.in/iec/foportal/help/all-topics/e-filing-services/file-itr-4-sugam-online (return due date and late fee stated on the ITR-4 page)

## Today's figures and who stands behind this skill

This file is an AI skill (tax rules your AI follows) from OpenAccountants, copied on 2026-09-06. Rates, thresholds and deadlines change. For the current version of this skill, its official sources and the named accountant (if any) who stands behind it, call `get_skill` with slug `in-cross-border-india-dual-resident-treaty` on the OpenAccountants connector (https://www.openaccountants.com/connect), or read https://www.openaccountants.com/skills/in-cross-border-india-dual-resident-treaty. If neither is available, confirm every figure against the official source pages cited above before relying on it.