Legal Permanent Resident & U.S. Tax, FBAR & FATCA

Legal Permanent Resident & Tax Resident: One of the most complicated aspects about U.S. tax, is just trying to decide who is subject to U.S. tax.  There are many different types of IRS taxes and tax rules, but for purposes of this article, we will focus on income tax and U.S. tax resident status.

For non-US citizens, there are two primary ways to become subject to US tax.

Either a person is a legal permanent resident, or the person meets the substantial presence test.

When a person receives what is commonly referred to as a “Green Card,” they are considered a U.S. person for tax purposes. This means that the individual will become subject to U.S. tax on their worldwide income.

It generally includes income that was earned either inside or outside of the United States. It may also include income that was generated tax-free in a different jurisdiction. (in other words, just because it was tax-free abroad does not mean it is considered tax-free in the U.S.)

Moreover, it also requires the individual to report foreign accounts, assets, and investments on a myriad of different international reporting forms such as the FBAR, Form 8938, Form 5471, etc.

Substantial Presence Test

Just because you have not received legal permanent resident status, does not mean you’re out of the clear just yet.  There is another method the IRS uses to extend U.S. tax requirements to non-citizens.

It is called “substantial presence.”

If a person meets the substantial presence test, they can become subject to U.S. tax on their worldwide income along with the same reporting requirements studying legal permanent resident must adhere to.

Summary of Substantial Presence Test

As a non-US citizen and non-US green card holder, you are generally only required to pay tax on your “US Effectively Connected Income” (money you earn while working in the United States). However, if you qualify for the Substantial Presence Test, then the IRS will tax you on your WORLDWIDE income.

IRS Substantial Presence Test generally means that you were present in the United States for at least 30 days in the current year and a minimum total of 183 days over 3 years, using the following equation:

  • 1 day = 1 day in the current year
  • 1 day = 1/3 day in the prior year
  • 1 day = 1/6 day two years prior

Example A: If you were here 100 days in 2016, 30 days in 2015, and 120 days in 2014, the calculation is as follows:

  • 2016 = 100 days
  • 2015 = 30 days/3= 10 days
  • 2014 = 120 days/6 = 20 days
  • Total = 130 days, so you would not qualify under the substantial presence test and NOT be subject to U.S. Income tax on your worldwide income (and you will only pay tax on money earned while working in the US).

Example B: If you were here 180 days in 2016, 180 days in 2015, and 180 days in 2014, the calculation is as follows:

  • 2016 = 180 days
  • 2015 = 180 days/3= 60 days
  • 2014 = 180 days/6 = 30 days
  • Total = 270 days, so you would qualify under the substantial presence test and will be subject to U.S. Income tax on your worldwide income, unless another exception applies.

Tax Liability – Substantial Presence Test

Once a person meets the substantial presence test, they are required to report their worldwide income in the United States on a 1040 instead of at 1040 NR. Depending on any tax treaties the United States has with any particular country, the foreigner may find himself or herself under heavy tax scrutiny by the United States.

Form 8840 Closer Connection Exception

Even if a person meets the substantial presence test, they may still be able to avoid U.S. tax by showing they have a closer connection to another country.

Form 8833 Treaty Position

Moreover, even if a person does not meet the closer connection exception, they may still be able to avoid U.S. tax on worldwide income by taking a treaty position for a particular type of income(s).

Out of IRS Compliance?

If you are out of US tax compliance, the penalties can be steep.

Golding & Golding can help.

Golding & Golding: About Our International Tax Law Firm

Golding & Golding specializes exclusively in international tax, and specifically IRS offshore disclosure

We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants, and Financial Professionals across the globe. Our attorneys have worked with thousands of clients on offshore disclosure matters, including FATCA & FBAR.

Each case is led by a Board-Certified Tax Law Specialist with 20 years of experience, and the entire matter (tax and legal) is handled by our team, in-house.

*Please beware of copycat tax and law firms misleading the public about their credentials and experience.

Less than 1% of Tax Attorneys Nationwide are Certified Specialists

Sean M. Golding is one of less than 350 Attorneys (out of more than 200,000 practicing California Attorneys) to earn the Certified Tax Law Specialist credential. The credential is awarded to less than 1% of Attorneys.

Recent Case Highlights

  • We represented a client in an 8-figure disclosure that spanned 7 countries.
  • We represented a high-net-worth client to facilitate a complex expatriation with offshore disclosure.
  • We represented an overseas family with bringing multiple businesses & personal investments into U.S. tax and offshore compliance.
  • We took over a case from a small firm that unsuccessfully submitted multiple clients to IRS Offshore Disclosure.
  • We successfully completed several recent disclosures for clients with assets ranging from $50,000 – $7,000,000+.

How to Hire Experienced Offshore Counsel

Generally, experienced attorneys in this field will have the following credentials/experience:

  • 20-years experience as a practicing attorney
  • Extensive litigation, high-stakes audit and trial experience
  • Board Certified Tax Law Specialist credential
  • Master’s of Tax Law (LL.M.)
  • Dually Licensed as an EA (Enrolled Agent) or CPA

Interested in IRS Voluntary Disclosure?

No matter where in the world you reside, our international tax team can get you IRS offshore compliant.

Golding & Golding specializes in IRS Offshore and Voluntary Disclosure. Contact our firm today for assistance with getting compliant.