- 1 U.S. Income Taxes for Foreign Nationals
- 2 All Income May be Taxable
- 3 Living Overseas vs in the United States
- 4 Foreign Sourced Income vs Domestic Source
- 5 Foreign Tax Credits
- 6 Foreign Earned Income Exclusion
- 7 Treaty Elections and Limitations
- 8 Reporting of Foreign Assets, Accounts, and Investments
- 9 Avoiding Taxes and Penalties
- 10 Current Year vs Prior Year Non-Compliance
- 11 Avoid False Offshore Disclosure Submissions (Willful vs Non-Willful)
- 12 Need Help Finding an Experienced Offshore Tax Attorney?
- 13 Golding & Golding: About Our International Tax Law Firm
U.S. Income Taxes for Foreign Nationals
The United States tax system can be very complicated for anyone to understand and especially for taxpayers who may not be born in the United States or otherwise familiar with the US tax system. The taxation rules in the U.S. operate much differently than most other countries’ tax systems when dealing with individuals especially. That is because, unlike almost every other country across the globe, the United States follows a worldwide income tax model for individuals. Technically, it is referred to Citizenship-Based Taxation (CBT) but that is a dangerous misnomer since CBT is not limited to just U.S. citizens. In fact, it is not limited to U.S. citizens only and includes Lawful Permanent Residents and foreign nationals who meet the Substantial Presence Test as well. Let’s go through the very basics of what worldwide taxation is with a few examples as well.
All Income May be Taxable
From a baseline perspective, all income can be taxable. In other words, when a person is considered a US person for tax purposes, then all the income that they earn may be taxable by the US government. Some income may be exempt, while other income may be excluded — but when a person is considered a US person, all of their worldwide income may be considered taxable by the US government unless an exception, exclusion, or limitation applies.
Living Overseas vs in the United States
One common misconception that many taxpayers have about U.S. taxes is that if they reside outside of the United States, then the income they generate is not taxable by the US government – unfortunately, this is incorrect. In fact, one of the biggest downsides of the worldwide income/citizenship-based taxation tax model is that residence does not dictate how income may be taxed. While many other countries may only tax worldwide income in situations in which the Taxpayer is considered a permanent resident of that country, from a US tax perspective whether the Taxpayer resides in the United States or abroad, the income is still taxable by the US government.
Foreign Sourced Income vs Domestic Source
Whether the income is generated from US sources or foreign sources does not impact the worldwide income taxation rule either. Thus, even in a situation in which a taxpayer resides outside of the United States and earns all of their income from sources outside of the United States – all of the income is still taxable under the worldwide income tax model. With that said there are some ways to reduce or eliminate U.S. tax liability on foreign income, which we discuss below.
Foreign Tax Credits
If a person pays taxes overseas on income generated abroad, then the Taxpayer may have the opportunity to apply some of those foreign taxes to their US income tax liability for the foreign-sourced income. This is referred to as utilizing foreign tax credits. There are limitations to using the credits and an equation is applied to ensure taxpayers do not use the foreign tax credits to reduce US-sourced income, but oftentimes foreign tax credits will serve to reduce or even eliminate tax liability on the specific income.
Foreign Earned Income Exclusion
Another method that some U.S. taxpayers can use to reduce or eliminate their U.S. tax liability from foreign income is when they have wages or other types of earned income while living overseas and qualify to apply the Foreign Earned Income Exclusion to their foreign income. Each taxpayer can exclude upwards of $110,000 of their income from their U.S. tax returns — in addition to certain foreign housing expenses. There are some limitations to applying the foreign earned income exclusion such as whether the Taxpayer works for a US contractor or US government vs private employer and/or whether or not the Taxpayer meets either the Bona Fide Residence rule (BFR) or the Physical Presence Test (PPT). Sometimes, a Taxpayer may qualify to utilize a hybrid application of foreign tax credits along with the foreign earned income exclusion (without double-dipping) to eliminate all tax liability — noting, that the Foreign Earned Income Exclusion is for ‘earned income’ and is not applied to passive income sources such as interest or dividends.
Treaty Elections and Limitations
Sometimes a Taxpayer may qualify to make a treaty election, such as electing to be treated as a foreign person for US tax purposes, in order to eliminate the worldwide income tax rules and limit U.S. taxes to U.S.- sourced income. It may also impact which types of foreign international reporting forms (such as the FBAR) are required to be filed.
Reporting of Foreign Assets, Accounts, and Investments
In addition to having to report worldwide income to the US government for tax purposes, U.S. persons are also required to disclose their foreign accounts, assets, and investments to the US government on a myriad of different international information reporting forms. The failure to properly report this information to the US government may result in significant fines and penalties although taxpayers may oftentimes qualify for various different amnesty tax programs which may reduce or eliminate penalties – such as the Streamlined Procedures.
Avoiding Taxes and Penalties
It is not uncommon for a Taxpayer who resides outside of the United States to be able to use the Foreign Earned Income Exclusion and Foreign Tax Credits to effectively eliminate any tax liability if applying to one of the amnesty programs. Moreover, Taxpayers who reside out of the country for a significant amount of time — or otherwise do not qualify for the Substantial Presence Test in any one of the past three years within the compliance period – may also qualify for an additional penalty waiver. This means that between the penalty waiver, foreign tax credits, and the foreign earned income exclusion A taxpayer may be able to safely get into compliance without having to pay any taxes or penalties. This is why taxpayers need to be cautious before being Led astray by inexperienced counsel and possibly (and needlessly) submitting an illegal quiet disclosure.
Current Year vs Prior Year Non-Compliance
Once a taxpayer missed the tax and reporting (such as FBAR and FATCA) requirements for prior years, they will want to be careful before submitting their information to the IRS in the current year. That is because they may risk making a quiet disclosure if they just begin filing forward in the current year and/or mass filing previous year forms without doing so under one of the approved IRS offshore submission procedures. Before filing prior untimely foreign reporting forms, taxpayers should consider speaking with a Board-Certified Tax Law Specialist that specializes exclusively in these types of offshore disclosure matters.
Avoid False Offshore Disclosure Submissions (Willful vs Non-Willful)
In recent years, the IRS has increased the level of scrutiny for certain streamlined procedure submissions. When a person is non-willful, they have an excellent chance of making a successful submission to Streamlined Procedures. If they are willful, they would submit to the IRS Voluntary Disclosure Program instead. But, if a willful Taxpayer submits an intentionally false narrative under the Streamlined Procedures (and gets caught), they may become subject to significant fines and penalties.
Need Help Finding an Experienced Offshore Tax Attorney?
When it comes to hiring an experienced international tax attorney to represent you for unreported foreign and offshore account reporting, it can become overwhelming for taxpayers trying to trek through all the false information and nonsense they will find in their online research. There are only a handful of attorneys worldwide who are Board-Certified Tax Specialists and who specialize exclusively in offshore disclosure and international tax amnesty reporting.
Golding & Golding: About Our International Tax Law Firm
Golding & Golding specializes exclusively in international tax, specifically IRS offshore disclosure.
Contact our firm today for assistance.