Benjamin Franklin famously quipped, “In this world, nothing can be said to be certain, except death and taxes.” For as long as anyone claims the rights and privileges of their sovereign nation in which they are citizens, the governments of those countries reserve the right to tax their citizens in order to provide the government’s services and infrastructure. Except, sometimes, in the case of people who are citizens of one country, but live – temporarily or permanently – in another… taxation is suddenly not so certain after all.
Because the reality is that countries generally only have a right to those people who reside within their borders, and/or who generate income within their borders. While, by limitations of jurisdiction, or coordination of treaties, those who are neither citizens nor residents, generally don’t have to pay taxes on any income not earned within the country’s borders.
In this guest post, Sahil Vakil, founder of Myra Wealth, which specializes in working with immigrants to the US (who may or may not be US citizens or residents), provides guidance on what advisors need to know about navigating the rules of non-US citizens, who may or may not be residents of the US, and who may have income both within and outside the US.
When it comes to non-US citizens living in the US – known as “aliens” by virtue of being non-US citizens – the key question is whether that person at least qualifies as a “resident” of the US, either by meeting the Green Card Test or the Substantial Presence Test. Those who do are resident aliens, and must declare and pay taxes on all their income worldwide (similar to US citizens), and are also subject to special Foreign Bank Account Report (FBAR) and must follow the Foreign Account Tax Compliance Act (FATCA), which can introduce substantial additional tax reporting burdens.
By contrast, nonresident aliens are generally not subject to FBAR and FATCA, and only must report and pay taxes on their income earned in the US (either by being Effectively Connected Income to the US, or be Fixed or Determinable, Annual, or Periodic (FDAP) income (e.g., passive portfolio income). Which in turn may be eligible for special tax rates (at least on FDAP), but also special tax withholding rules.
And ultimately, these rules are important not only for the taxation of resident and nonresident aliens themselves but also the tax strategies that emerge (e.g., resident aliens contributing to US retirement accounts to receive the deduction at current US tax rates on worldwide income, but liquidating them after returning to the home country when they will only be taxed on US income as nonresident aliens). On the other hand, the limitations on tax rules for resident and especially nonresident aliens can also complicate traditional tax planning strategies (e.g., the unlimited marital deduction is not available for nonresident alien spouses, forcing the use of a Qualified Domestic Trust [QDOT] instead).
The bottom line, though, is simply to understand that, while for US citizens, there may be nothing more inescapable than death and taxes, when it comes to non-citizen “aliens,” the rules in fact are far more nuanced and the situation is less clear… presenting both opportunities, and traps, to be aware of!