Many US taxpayers are familiar with Form 1040, the tax return that many Americans files once a year. What about non-US taxpayers that have a US-filing requirement and need to file a tax return? It is when Form 1040-NR, US Nonresident Alien Income Tax Return, comes into the picture.
United States Person ("US Person")
First of all, note that US Person is defined differently for tax purposes than for immigration purposes. Whether someone is a US Person for tax purposes is irrelevant if someone is a US person for immigration purposes. This introduction is based on US Person for tax purposes. Please consult an immigration attorney for immigration matters.
The Internal Revenue Code aka the tax laws defines a US Person as:
As a comparison, a foreign person includes:
The basic rule is if you are not a U.S. citizen, then you are considered a nonresident for US tax purposes unless you meet the Green Card Test or the Substantial Presence Test for the calendar year (January 1 - December 31).
Green Card Test
You are a resident, for U.S. federal tax purposes, if you are a lawful permanent resident of the United States at any time during the calendar year. This is known as the "green card" test.
You are a lawful permanent resident of the United States, at any time, if you have been given the privilege, according to the immigration laws, of residing permanently in the United States as an immigrant. You generally have this status if the U.S. Citizenship and Immigration Services (USCIS) issued you a Permanent Resident Card, Form I-551, also known as a "green card."
You continue to have U.S. resident status, under this test, unless:
Substantial Presence Test
You will be considered a United States resident for tax purposes if you meet the substantial presence test for the calendar year. To meet this test, you must be physically present in the United States (U.S.) on at least:
Days of Presence in the United States
You are treated as present in the U.S. on any day you are physically present in the country, at any time during the day. However, there are exceptions to this rule. Do not count the following as days of presence in the U.S. for the substantial presence test:
The term United States (U.S.) includes the following areas:
Exempt Individual
Do not count days for which you are an exempt individual. The term "exempt individual" does not refer to someone exempt from U.S. tax, but to anyone in the following categories:
If you exclude days of presence in the U.S. for purposes of the substantial presence test because you were an exempt individual or were unable to leave the U.S. because of a medical condition or medical problem, you must include Form 8843, Statement for Exempt Individuals and Individuals With a Medical Condition, with your income tax return. If you do not have to file an income tax return, send Form 8843 to the address indicated in the instructions for Form 8843 by the due date for filing an income tax return.
If you do not timely file Form 8843, you cannot exclude the days you were present in the U.S. as an exempt individual or because of a medical condition that arose while you were in the U.S. This does not apply if you can show, by clear and convincing evidence that you took reasonable actions to become aware of the filing requirements and significant steps to comply with those requirements.
Closer Connection Exception to the Substantial Presence Test
Even if you met the substantial presence test you can still be treated as a nonresident of the United States for U.S. tax purposes if you qualify for one of the following exceptions:
Why Choose Trans-Pacific Accounting and Business Consuting
International-related taxation in the Internal Revenue Code is extremely complex and confusing. Many seasoned CPAs and tax return preparers are not familiar with the filing requirements. It is very common for them to miss reporting foreign income, forms, and information. The IRS has heightened its enforcement on non-compliance on foreign-related reporting, and penalties are generally extremely high. Not sure if you need to file or if your current CPA or tax return preparer is preparing your tax return correctly? Not sure if you are filing all the required forms? Contact us now for a free consultation.
United States Person ("US Person")
First of all, note that US Person is defined differently for tax purposes than for immigration purposes. Whether someone is a US Person for tax purposes is irrelevant if someone is a US person for immigration purposes. This introduction is based on US Person for tax purposes. Please consult an immigration attorney for immigration matters.
The Internal Revenue Code aka the tax laws defines a US Person as:
- A citizen or resident of the United States
- A domestic partnership
- A domestic corporation
- Any estate other than a foreign estate
- Any trust if:
- A court within the United States is able to exercise primary supervision over the administration of the trust, and
- One or more United States persons have the authority to control all substantial decisions of the trust
- Any other person that is not a foreign person.
As a comparison, a foreign person includes:
- Nonresident alien individual
- Foreign corporation
- Foreign partnership
- Foreign trust
- A foreign estate
- Any other person that is not a U.S. person
The basic rule is if you are not a U.S. citizen, then you are considered a nonresident for US tax purposes unless you meet the Green Card Test or the Substantial Presence Test for the calendar year (January 1 - December 31).
Green Card Test
You are a resident, for U.S. federal tax purposes, if you are a lawful permanent resident of the United States at any time during the calendar year. This is known as the "green card" test.
You are a lawful permanent resident of the United States, at any time, if you have been given the privilege, according to the immigration laws, of residing permanently in the United States as an immigrant. You generally have this status if the U.S. Citizenship and Immigration Services (USCIS) issued you a Permanent Resident Card, Form I-551, also known as a "green card."
You continue to have U.S. resident status, under this test, unless:
- You voluntarily renounce and abandon this status in writing to the USCIS,
- Your immigrant status is administratively terminated by the USCIS, or
- Your immigrant status is judicially terminated by a U.S. federal court.
Substantial Presence Test
You will be considered a United States resident for tax purposes if you meet the substantial presence test for the calendar year. To meet this test, you must be physically present in the United States (U.S.) on at least:
- 31 days during the current year, and
- 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
- All the days you were present in the current year, and
- 1/3 of the days you were present in the first year before the current year, and
- 1/6 of the days you were present in the second year before the current year.
Days of Presence in the United States
You are treated as present in the U.S. on any day you are physically present in the country, at any time during the day. However, there are exceptions to this rule. Do not count the following as days of presence in the U.S. for the substantial presence test:
- Days you commute to work in the U.S. from a residence in Canada or Mexico if you regularly commute from Canada or Mexico.
- Days you are in the U.S. for less than 24 hours, when you are in transit between two places outside the United States.
- Days you are in the U.S. as a crew member of a foreign vessel.
- Days you are unable to leave the U.S. because of a medical condition that develops while you are in the United States.
- Days you are an exempt individual (see below).
The term United States (U.S.) includes the following areas:
- All 50 states and the District of Columbia.
- The territorial waters of the United States.
- The seabed and subsoil of those submarine areas that are adjacent to U.S. territorial waters and over which the United States has exclusive rights under international law to explore and exploit natural resources.
Exempt Individual
Do not count days for which you are an exempt individual. The term "exempt individual" does not refer to someone exempt from U.S. tax, but to anyone in the following categories:
- An individual temporarily present in the U.S. as a foreign government-related individual under an “A” or “G” visa, other than individuals holding “A-3” or “G-5” class visas.
- A teacher or trainee temporarily present in the U.S. under a "J" or "Q" visa, who substantially complies with the requirements of the visa.
- A student temporarily present in the U.S. under an "F," "J," "M," or "Q" visa, who substantially complies with the requirements of the visa.
- A professional athlete temporarily in the U.S. to compete in a charitable sports event.
If you exclude days of presence in the U.S. for purposes of the substantial presence test because you were an exempt individual or were unable to leave the U.S. because of a medical condition or medical problem, you must include Form 8843, Statement for Exempt Individuals and Individuals With a Medical Condition, with your income tax return. If you do not have to file an income tax return, send Form 8843 to the address indicated in the instructions for Form 8843 by the due date for filing an income tax return.
If you do not timely file Form 8843, you cannot exclude the days you were present in the U.S. as an exempt individual or because of a medical condition that arose while you were in the U.S. This does not apply if you can show, by clear and convincing evidence that you took reasonable actions to become aware of the filing requirements and significant steps to comply with those requirements.
Closer Connection Exception to the Substantial Presence Test
Even if you met the substantial presence test you can still be treated as a nonresident of the United States for U.S. tax purposes if you qualify for one of the following exceptions:
- The closer connection exception. Please refer to Closer Connection Exception to the Substantial Presence Test .
- The closer connection exception available only to students. Please refer to The Closer Connection Exception to the Substantial Presence Test for Foreign Students.
Why Choose Trans-Pacific Accounting and Business Consuting
International-related taxation in the Internal Revenue Code is extremely complex and confusing. Many seasoned CPAs and tax return preparers are not familiar with the filing requirements. It is very common for them to miss reporting foreign income, forms, and information. The IRS has heightened its enforcement on non-compliance on foreign-related reporting, and penalties are generally extremely high. Not sure if you need to file or if your current CPA or tax return preparer is preparing your tax return correctly? Not sure if you are filing all the required forms? Contact us now for a free consultation.