Green Card Holder & Foreign Income (2018) – U.S. Tax, FATCA & FBAR
One of the more confusing parts of US tax law is understanding how the United States taxes individuals on their worldwide income, offshore accounts and foreign assets.
With the 2017 tax return coming due over the next few months, we want to try to provide some basics to assist you with understanding what the IRS requires.
U.S. Tax on Worldwide Income
United States is one of the few countries in the world that taxes individuals on their worldwide income.
Therefore, if you are a Green-Card Holder/Legal Permanent Resident then you will be taxed just as if you were a US citizen. As a result, whether or not you reside in the United States or outside of the states, you are required to file a tax return.
Moreover, whether or not the income you earn is sourced in the United States or outside of the states, does not mater — you are required to report all of this income under US Tax Return.
You May Not be Taxed on the Income
There’s a distinction regarding reporting the income on your US tax return and paying US taxes. All of your income you earn worldwide should be included on your taxes. With that said, you may be entitled to an exclusion or foreign tax credit(s) for taxes paid abroad. This can be the result of qualifying for the foreign earned income exclusion, or being able to take a treaty position.
For example, you may be receiving pension benefits from a government pension abroad, which may only be taxable in the foreign jurisdiction. That does not mean it is excluded from your tax return (you still include the income in your tax return), but you do not have to pay U.S. tax on it, because it is an exception/exclusion.
Depending on the type of exception or exclusion you are relying upon, you may have to file additional documentation with your taxes.
Golding & Golding International Tax Resource: U.S. Worldwide Taxation Rules
Review the U.S. Income Tax Treaty
United States has entered into income tax treaties with more than 50 countries. While many of these treaties are nearly identical in content, they often will have nuances and differences — especially on issues involving retirement, pension and Social Security (usually Paragraphs 16-20 of the Treaty.)
While general proposition contained in many treaties is that the country of residence is usually the country that has the opportunity to tax individuals on issues such as retirement, these rules are not linear and there are exceptions, exclusions, and limitations depending upon the specific country, the specific treaty, and the specific type of income.
Golding & Golding International Tax Resource: We recommend searching our Tax Library for the specific country
The United States has entered into totalization agreements with around 25 different countries. This is important, especially if you are a U.S. person living overseas who is self-employed in a foreign country. That is because in accordance with the totalization agreement, you may have a Social Security payment responsibility in only one country, but not the other.
Is important to note that the totalization agreements are not identical, and vary even between neighboring countries. For example, the United States has entered into a totalization agreement with Australia, but has not entered into a totalization agreement with New Zealand.
Golding & Golding International Tax Resource: Understanding Totalization Agreements
Foreign Tax Credits
If you already pay tax in a foreign country on income you earn in a foreign country, you may receive a credit for that tax in the United States on the income. So for example, if you earned $50,000 of interest income in Portugal and paid 11% tax, then when you report that income under US tax return you will also include the taxes paid on a form 1116.
There is an equation that is used to ensure that none of the foreign tax is used to offset US tax on US income so it is not always a dollar per dollar credit – but it is a nice benefit, and often times comes close to a 75% – 100% tax credit.
Golding & Golding International Tax Resource: Foreign Tax Credit vs. Foreign Earned Income Exclusion; High-Tax Kick-Out
Foreign Earned Income Exclusion
Over the last few years we have seen many inexperienced practitioners using the exclusion for clients in which it does not apply. In order to claim this exclusion, you have to meet either the Physical Presence Test or the Bona-Fide Residence Test. If you have not lived outside the country for at least 330 days in any 12 month period, you will not qualify for the Physical Presence Test. And, if you live the majority of the time in the United States, you will presumably not qualify for the Bona-Fide Residence Test.
Also, you cannot switch back and forth each year between the two separate tests, so it is important to work with a practitioner who understands the application of the exclusion and when it qualifies.
The exclusion is a bit of a red flag so if you are on that cusp of believing you may qualify or not qualify, you should have your ducks in a row at the time of the tax return submission.
Golding & Golding International Tax Resource: Foreign Earned Income Basis; Foreign Tax Credit vs. Foreign Earned Income Exclusion;
We have written hundreds of articles on this subject already, including Case Studies, Examples, and FAQ. The FBAR is the Report of Foreign Bank and Financial Account Form. It is required to be filed by any individual who has more than $10,000 in annual aggregate total, in foreign accounts on any day of the year. Is not filed along with your tax return; it is filed separately, electronically with the Department of Treasury on that FinCEN website. It is due at the same time your tax return is due – including extensions.
If you are out of compliance for prior years, this is not the form to quietly disclose. In other words, if you are out of compliance, then you should speak with an experienced offshore disclosure attorney to prepare strategy for getting into compliance.
If you only just learned about this form and are about to file your first FBAR, but you were required to file in prior years, do not file the form until you have spoken with an attorney.
FATCA Form 8938
FATCA is the Foreign Account Tax Compliance Act. It is required in order to disclose certain specified foreign assets (which may also include accounts). It is similar to the FBAR, but different in many respects. First, it is filed along with your tax return as a form accompanying your 1040. Second, it does not have the same threshold requirements as the FBAR. Threshold requirements are much higher so that less people have to file the form. The threshold requirements vary based on marital status and residence. Third, unlike the FBAR, FATCA Form 8938 requires that you include the income that was generated from the specified foreign assets included on form 8938.
Foreign Investments, PFIC & Form 8621
If you have investments overseas such as a foreign mutual fund, or you are the owner of a foreign corporation that manages investments and you meet the requirements of it being a PFIC, then your tax return just became infinitely harder to prepare. Whether or not you will have to file a form 8621 will be determined by the value of the PFIC assets, whether you or your CPA ever made an election, etc. In addition, depending on whether you have ever made a previous election for the specific assets, and/or whether or not you have any distributions/ excess distributions will impact the preparation of the tax analysis.
The reason why this form 8621 is so important, is because if it is not filed when it is supposed to be filed — then your tax return is considered incomplete and the statute of limitations does not begin to run yet.
Foreign Trusts, Partnerships, or Businesses
Depending on whether or not you have sufficient interest, control, or ownership of a foreign business or trust may determine whether or not you have to file other tax forms such as Form 3520, 5471, or 8865.
These forms are considerably complicated, especially for somebody who is not in the business of preparing international tax returns. Moreover, ever since the Internal Revenue Service has made international tax enforcement a mainstay and priority, the penalties that the IRS may issue for individuals out of compliance have increased exponentially.
As a result, if you have any sort of interest or ownership (or control) over foreign business or trusts, it is important to determine what your filing requirements are before submitting your tax return to the IRS.
Get Into Compliance with IRS Offshore Disclosure
If you are already out of compliance for prior years, it is important to speak with an experienced IRS Offshore Voluntary Disclosure Lawyer before submitting any further documents or tax returns to the IRS.