US tax residents (citizens, permanent residents, and substantial presence test aliens) are required to pay income tax on their worldwide income and non residents are only required to pay tax on their US sourced income.
First, do you have to file tax returns?
Both US tax residents with worldwide income and non residents with US sourced income need to file US tax returns. A non-resident will have US sourced income if they they are engaged or considered to be involved in a trade or business in the US within any given year.
Determining your tax residency
Non-citizens are called residents if they are permanent residents (i.e. they hold a green card) or if they pass the substantial presence test. They are referred to in the Internal Revenue Code as resident aliens. A non-citizen will pass the substantial presence test if they spend at least 31 days during the current year within the US and if, when you apply the 3 year aggregation formula set out within the Internal Revenue Code to their circumstances, they are deemed to have spent more than 183 days in the US (current year x 1 + year prior to current year x 1/3 (Year 2) + year prior to Year 2 x 1/6). If you do not hold a green card or do not pass the substantial presence test you are considered a non-resident alien.
Tax treatment of citizens and resident aliens
Resident aliens use the same filing statuses as citizens and are able to claim the same deductions and tax credits as citizens. Resident aliens must report all forms of income received including wages, investment returns, and income received from foreign governments including pensions. There are exceptions to the residence test that provides many of the legal aliens with exemptions from reporting global income.
Exemptions for resident aliens
- Those who commute from Canada or Mexico regularly do not count commuting days as residence days for the substantial residence test.
- Those who are able to prove that they had a tax home in another country during the years they are not present in the US for 183 days. This tax home is then considered the principle place of business or the primary residence of the individual.
- Exempt persons include those who are in the US temporarily including teachers, students, trainees, professional athletes, and employees of non-US governments.
- Tax treaty exemptions apply to those who are from certain countries which may have favorable tax treaties with the US.
Tax treatment of non-resident aliens
Non-resident aliens who have US earnings are only required to pay income tax on the income that is generated from a US-based source. Any foreign income does not have to be reported on a US tax return and is not considered tax-eligible by the IRS. For example, if an Australian business person owns and operates a business in Australia and owns a business located in the US, only the income generated by the US-based business is considered taxable. Also, if that person realizes investment income in the US that is not from a US source, the income from that investment is taxable at a flat rate of 30%, unless otherwise specified by a tax treaty. It is important for non-residents to keep strict records of their global income as they should report it to the IRS as evidence of their compliance with the regulations.
Will I have to pay tax twice on my income from another country?
Good news, if you are paying tax on foreign-based income you may be eligible for foreign tax credits that reduce your burden in the US. Individuals can claim a tax credit for taxes levied by another government on foreign income. Any foreign taxation needs to be reported on schedule A of personal tax return form 1040. In most cases this reduces the amount of taxable foreign income for individuals with global income. There are four criteria for foreign tax to be a deduction on your US tax returns. First, the tax must be imposed on you. You must also have paid the tax. The tax must be a real, legal foreign tax liability and it must be an income tax.
The IRS also operates with a foreign earned income exclusion which is available to those who meet certain criteria. While citizens and resident aliens who live abroad must still report their global income, they may be eligible to exclude all or part of their foreign earnings from US federal taxation.
It is very important to comply with US tax requirements and file your personal returns as necessary. While these laws may seem punitive to those who operate in international markets, they are the rules imposed by the US government and there are penalties and fines on those who do not comply. International tax law is complicated. If you have multiple international income streams, it is critical to get advice from an expert who has intimate knowledge of international tax regulations to help you to make the most of any tax credits and deductions available to you in order to minimize your overall tax burden.
CST Tax Advisors has specialized in helping individuals with international interests to navigate these complicated regulations and requirements for 25 years. The accountants and tax professionals here serve clients from offices spanning the globe and provide intelligent advice to help you protect your wealth.