International pilots, flight attendants and cruise ship employees earn income such as wages and salaries while working abroad. Most of them could assume that they earn foreign income. As such, pursuant to Sec. 911(e), are entitled to elect the foreign income exclusion on their United States (U.S.) expatriate tax return. However, taxpayers should first determine the source of their income by dividing their earnings by (1) hours spent in the United States and in the airspace above the United States; (2) hours spent in foreign countries and in airspace over foreign countries; and (3) hours spent in international airspace and waters. The first two are self-explanatory. (1) are treated as a U.S. source of income and (2) are treated as a foreign source of income. But what about the number (3)? How should taxpayers classify their source of income while flying in international airspace or providing services over international waters? In the case Rogers v. Commissioner, the Rogers argued that wages attributable to hours spent in international airspace were earned “within a foreign country” within the meaning of Sec. 911(b)(1)(A). But the Tax Court in Rogers focused on Sec. 1.911-2(h), and determined that for purposes of Sec. 911 airspace over international waters was not airspace over territory under the sovereignty of any government. As such, the airspace over international waters was not within a “foreign country” for purposes of Sec. 1.911-2(h) and Sec. 911 (b)(1)(A). The same treatment of international airspace for purposes of Sec. 911 was expressed in the cases Savary v. Commissioner, Clark v. Commissioner and Struck v. Commissioner. The consistency of the Tax Courts' treatment of the income in question as non-foreign source income assures the taxpayer that any...... half of the paper....... Commissioner, 473 F.3d 790, 798 ( 7th Cir. 2007), aff'g 126 TC 89 (2006).Clark v. Commissioner, TC Memo. 2008-71(Kuntz &Peroni, U.S. International Taxation (WG&L Electronic Edition 2010), Sec.A2.03[10])Stankee, "IRS Grants That Concessionaire Profits Were Not Subpart F Income," 11 /. by InVl Tax'n (March 2000). See also General Explanation of the Tax Reform Act of 1986, No. 22 above, on page. 829, concluding that although Sec. 863(c) excludes from transportation income airline employee wages earned on flights between U.S. airports and airports in foreign countries, income attributable to services performed in the United States or territorial waters Americans is from American source Rogers v. Commissioner, TC Memo. 2009-111, 97 TCM 1573, Rogers v. Commissioner, TC Memo. 2013-77 Struck v. Commissioner, TC Memo. 2007-42TAM 9327001,TAM 9327003TAM 9327004