U.S. Person For Tax Purposes (2018) – Foreign Income & Accounts by Golding & Golding
U.S. Person For Tax Purposes (2018) – Foreign Income & Accounts
Understanding how U.S Tax impacts non-citizens can be very difficult, and unnecessarily complicated. There is a common misconception involving when a foreign person is considered a U.S. Person for U.S. tax purposes. Specifically, how a non-US citizen is required to pay and report taxes and foreign accounts just as if they were US citizen.
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U.S. Person For Tax Purposes
Here is an example of how the process works:
U.S. Person is More than Citizenship
Excluding any issues with a business having to report in the United States, when it comes to US taxes and individuals, the analysis is relatively straightforward.
U.S. Citizen
If a person is a U.S. Citizen, they are required to pay U.S. tax on their worldwide income, whether or not they reside in the United States. They are also required to file any necessary FATCA Form 8938 (Foreign Account Tax Compliance Act), FBARs (Report of Foreign Bank and Financial Account Forms), and various other informational reporting for Foreign Businesses, Foreign Corporations, Foreign Partnerships or other business ventures.
Legal Permanent Resident/Green-Card Holder
When a person is a Legal Permanent Resident or Green Card Holder they unfortunately have the same reporting requirement. In other words, once a person is considered a Legal Permanent Resident they are required to pay U.S. tax on their worldwide income, whether or not they reside in the United States.
They are also required to file any necessary FATCA Form 8938 (Foreign Account Tax Compliance Act), FBARs (Report of Foreign Bank and Financial Account Forms), and various other informational reporting for Foreign Businesses, Foreign Corporations, Foreign Partnerships or other business ventures.
Visa Holder or Foreign National
Here is where most people get confused (understandably so). Even if a person is not a Legal Permanent Resident or U.S. citizen, they are still required to file US tax returns and report their foreign accounts and assets just as if they were a U.S. Citizen or Legal Permanent Resident when they meet the Substantial Presence Test.
The Substantial Presence Test is a test that essentially “tests” whether you were “substantially present” in the United States sufficient to have toe file a U.S. tax return just as if you fell into one of the two aforementioned categories.
Typically, to meet this test a person must have been in the United States for 183 days over the last three years and at least 30 days in the present (some exceptions, exclusions, and limitations apply). It typically averages out to 121 days per year.
And, it is important to keep in mind that it is not a one to one ratio in years outside of the current. To better explain, please see the following analysis:
Substantial Presence Test
When a person first comes to the United States to live, if they earned income they are required to file a tax return. Until they become a Legal Permanent Resident or US citizen, they finally 1040-NR.
The problem for many people is that once they have lived in the United States for a certain amount of time, they become subject to regular taxation just as if they were a US citizen or Legal Permanent Resident. Not only does this mean that the United States will tax the person on the worldwide income, but they are also required to comply with all foreign account reporting requirements.
The failure to comply with foreign account reporting may result in significant fines, penalties, and even criminal investigation depending on the facts and circumstances of their case. In addition, if the person is found to be willful and their failure to report then their entire foreign accounts can be subject to a 100% penalty.
The following is a summary of the Substantial Presence Test followed by a summary of FBAR reporting requirements:
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.
*Please note, there are various exceptions, exclusions and other limitations
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