The IRS enforcement environment in 2026 is moving in two directions at once. On one hand, the agency has publicly committed to higher audit coverage for large corporations, complex partnerships, and very high-income individuals. On the other hand, the IRS is operating with a materially smaller workforce than it had at the beginning of 2025.

This does not mean the IRS is stepping back from enforcement. It means enforcement is becoming more selective, more data-driven, and more focused on taxpayers and transactions that the agency believes offer the highest compliance risk or revenue potential. For many taxpayers, the risk is not simply that the IRS will open more audits. The greater risk is that, when an audit is opened, the IRS may already have substantial third-party data, foreign account information, digital asset reporting, Form 1099 data, K-1 information, and statistical comparisons against similar taxpayers.

The result is a different type of examination environment. Fewer taxpayers may be selected overall, but those selected can expect a more focused and more technically demanding audit.

The IRS’s Stated Enforcement Priorities

The IRS has continued to identify three categories of taxpayers for increased audit coverage: large corporations, large and complex partnerships, and wealthy individuals. At the same time, the IRS has stated that it does not intend to increase audit rates for small businesses and taxpayers making under $400,000, relative to historical levels.

For large corporations with assets over $250 million, the IRS has stated that it intends to increase the audit rate from 8.8% to 22.6% by the 2026 tax year. These examinations are expected to remain specialist-driven and document-intensive, with continued attention on transfer pricing, intercompany transactions, foreign tax credits, basis-shifting transactions, and complex entity structures. The IRS’s own budget materials note that large corporate examinations have an average case cycle time of approximately 36 months, which means staffing and training changes can affect examination capacity over several years.

For large and complex partnerships with assets over $10 million, the IRS has stated that it intends to increase audit rates from 0.1% to 1.0%, a nearly tenfold increase. This remains one of the most significant enforcement developments for pass-through entities. Partnerships have historically been difficult to examine because of tiered ownership, special allocations, partner-level tax attributes, capital account issues, debt allocations, and transfers of partnership interests. The centralized partnership audit regime gives the IRS a more efficient procedural path to examine and adjust partnership items at the entity level.

For wealthy individuals, the IRS has stated that it intends to increase audit coverage for taxpayers with total positive income over $10 million to 16.5% by the 2026 tax year. These examinations often extend beyond the Form 1040 itself and into related entities, trusts, private investment vehicles, foreign accounts, charitable structures, real estate activities, and pass-through income reported on Schedules K-1.

The DOGE Effect: Fewer Agents, Smarter Tools

The IRS’s enforcement plans must be read together with the agency’s staffing reductions. The Treasury Inspector General for Tax Administration reported that between January 2025 and May 2025, the IRS workforce decreased from approximately 103,000 to 77,000 employees, a 25% reduction. Those employees either separated from the agency or accepted deferred resignation or other incentive offers.

Reuters reported that IRS enforcement revenue declined by 5%, or almost $5 billion, in the fiscal year, and that the agency opened more than 120,000 fewer tax audits in 2025 than in the prior year. Reuters also reported that the IRS enforcement function lost roughly 5,000 employees heading into 2026 and is projected to lose another 5,000 in the coming year. Longer term, the agency reportedly aims to employ approximately 69,000 people by fiscal year 2027, compared with a recent peak of 103,000 employees.

Despite these reductions, the IRS has not signaled an end to enforcement. Treasury officials told Reuters that enforcement revenue increased 12% in the first five months of fiscal year 2026, which began October 1. The apparent strategy is to concentrate limited resources on cases that appear more likely to produce significant adjustments.

The mechanism for that recovery is technology. IRS leadership under CEO Frank Bisignano has doubled down on artificial intelligence and data analytics to compensate for lost staffing. The agency now uses AI-powered tools to:

• Cross-match returns against third-party data (W-2s, 1099s, brokerage records, digital asset reports, and international FATCA feeds) at unprecedented scale
• Identify statistical anomalies in deductions, income characterization, and entity allocations relative to peer benchmarks
• Flag mismatches between FBAR/FATCA reporting and income tax return positions
• Prioritize audit case selection by estimated tax recovery potential

The net effect: the IRS is auditing less, but when it audits, it arrives better prepared, with more data, and with enforcement as its objective.

International Reporting Remains A Major Enforcement Risk

Cross-border compliance remains one of the IRS’s highest-priority enforcement areas in 2026. The FATCA network now spans over 110 jurisdictions, and the IRS receives automated account-level data from thousands of foreign financial institutions. Where that data does not reconcile with FBAR filings (FinCEN Form 114) or Form 8938, the IRS’s AI matching tools will surface the discrepancy.

Penalties for FBAR non-compliance are severe. Non-willful violations carry penalties up to $16,536 per annual report (following the Supreme Court’s 2023 Bittner decision, which confirmed the per-report rather than per-account penalty standard). Willful violations carry civil penalties of the greater of $165,353 or 50% of the account balance, plus potential criminal exposure. The IRS has a six-year statute of limitations for FBAR penalty assessments.

Taxpayers with unreported or inconsistently reported foreign accounts should evaluate corrective options before the IRS initiates contact. Once an examination begins, available options may become more limited and the risk profile can change quickly.

Digital Asset Reporting Is Entering A New Phase

Digital asset enforcement is also changing. Treasury and the IRS have issued final regulations requiring brokers to report certain digital asset sale and exchange transactions beginning with transactions that take place in calendar year 2025, reported on Form 1099-DA. Brokers must report gross proceeds for transactions effected on or after January 1, 2025.

The next stage begins with basis reporting. Basis reporting is required by certain brokers for transactions occurring on or after January 1, 2026. The 2026 Form 1099-DA instructions state that, for sales effected on or after January 1, 2026, brokers are not required to report basis information for digital assets that are noncovered securities, although they may voluntarily report that information and receive penalty protection if the appropriate box is checked.

This creates a new matching environment for cryptocurrency and other digital asset taxpayers. Many early digital asset filings were prepared with incomplete cost basis records, inconsistent wallet transfer tracking, exchange migration issues, staking income questions, NFT transactions, stablecoin transactions, or DeFi activity that was not reported consistently. The IRS will now have more third-party reporting to compare against Form 1040 digital asset disclosures, Schedule D, Form 8949, and other return positions.

Taxpayers should not assume that the absence of a Form 1099-DA means there is no reporting obligation. IRS guidance states that decentralized finance brokers and some foreign brokers are not required to file Form 1099-DA or furnish statements to taxpayers. The taxpayer remains responsible for accurate reporting even when no form is issued.

Pass-Through Entities Should Expect More Scrutiny

Partnerships and S corporations remain central enforcement targets because income, deductions, credits, and basis adjustments flow from the entity to the owner. A federal adjustment at the entity level can affect multiple owners, multiple tax years, and state tax reporting.

The IRS’s stated increase in audit coverage for partnerships with assets over $10 million is particularly important for partnerships with contributed property, special allocations, tiered structures, related-party transactions, debt allocations, Section 754 elections, Section 743(b) adjustments, carried interests, or significant capital account activity. The agency’s focus is not limited to whether income was reported. It also includes whether allocations have substantial economic effect, whether basis adjustments are properly calculated, whether liabilities are properly allocated, and whether transfers of partnership interests have been correctly reported.

California taxpayers should also consider state follow-on exposure. A federal partnership adjustment can create California issues involving California-source income, apportionment, withholding, composite filings, and pass-through entity tax positions. For multistate partnerships and owners, the federal audit may be only the first stage of a broader compliance review.

High-Income Individual Examinations Are Broader Than The Form 1040

For individuals with total positive income over $10 million, the IRS’s stated audit-rate increase to 16.5% means return preparation and supporting documentation are increasingly important. High-income examinations often involve more than the individual income tax return. The IRS may examine related entities, family partnerships, trusts, foundations, foreign accounts, private investment structures, aircraft or yacht expenses, real estate losses, charitable contributions, installment sale reporting, and related-party loans.

The IRS is also likely to compare reported income against third-party reporting and broader financial indicators. A taxpayer with significant assets, visible liquidity events, substantial debt service, or large lifestyle expenditures may face questions if the reported income profile does not appear consistent with available data.

For high-income taxpayers, contemporaneous documentation is essential. Large deductions, recurring business losses, nonstandard investment structures, foreign tax credit positions, treaty positions, and related-party arrangements should be supported before the return is filed. Reconstructed records are generally less persuasive than documentation prepared at the time of the transaction.

Employee Retention Credit Claims Remain High Risk

Employee Retention Credit enforcement remains a priority, particularly for claims prepared by promoters or filed late in the program. The IRS has issued FAQs addressing new ERC compliance provisions under the One Big Beautiful Bill. Those provisions affect ERC claims for the third and fourth quarters of 2021 filed after January 31, 2024.

Under Section 70605(d) of the OBBB, effective July 4, 2025, the IRS is prevented from allowing or refunding ERC claims for the third and fourth quarters of 2021 if those claims were filed after January 31, 2024, even if the employer otherwise met the eligibility requirements. The IRS guidance also states that the law strengthens compliance enforcement by imposing penalties on certain ERC promoters who fail to meet due diligence requirements when assisting with claims.

If an ERC claim is disallowed, the IRS states that the taxpayer will receive Letter 105-C, Claim Disallowed. A taxpayer may appeal to the IRS Independent Office of Appeals if the taxpayer believes the ERC claim was timely filed on or before January 31, 2024, and was improperly disallowed under Section 70605(d).

Employers with pending or previously paid ERC claims should review the quarter claimed, filing date, eligibility analysis, payroll records, government order support, gross receipts calculations, promoter involvement, and IRS correspondence. Claims based on broad supply-chain arguments, general economic disruption, or boilerplate shutdown narratives remain especially vulnerable.

Abusive Transactions Remain on the IRS Radar

Syndicated conservation easements, micro-captive insurance arrangements, monetized installment sale structures, and other listed or high-risk transactions remain enforcement priorities. Taxpayers who participated in these arrangements should not assume that the passage of time eliminates risk. Listed transaction reporting failures, promoter investigations, extended statutes, and penalty assertions can significantly increase exposure.

In many of these cases, the IRS may examine not only the claimed tax benefit, but also the taxpayer’s reporting obligations, reliance on professional advice, valuation support, transaction documents, and communications with promoters or advisors. Privilege and document production issues should be considered early, not after the examination is underway.

What Taxpayers Should Expect If Examined

The character of IRS examinations has changed. Audits that once began as broad information-gathering inquiries are now more likely to begin with a defined enforcement objective. Examiners may have already reviewed third-party reporting, foreign account information, digital asset records, K-1 reporting, and peer comparisons before contacting the taxpayer.

Initial Information Document Requests may therefore be more specific and more demanding. Taxpayers should expect requests for original records, contemporaneous workpapers, transaction documents, account statements, basis schedules, foreign reporting support, and communications relevant to the return position. For cross-border taxpayers, an income tax issue can quickly become an information reporting issue, and an information reporting issue can lead to broader questions about unreported income, foreign tax credits, GILTI, Subpart F, PFICs, treaty positions, or FBAR compliance.

Taxpayers should also consider privilege before responding to an IRS notice. Communications with a CPA are generally not protected in the same way as communications with legal counsel. Sensitive matters involving offshore reporting, promoter transactions, digital assets, high-dollar partnership positions, or potential penalties should be reviewed carefully before documents are produced.

Practical Preparation For 2026

The most effective risk management is proactive. Taxpayers in the IRS’s priority categories should review open tax years before receiving an IRS notice. That review should focus on material filing positions, missing or inconsistent information returns, foreign account reporting gaps, digital asset reporting issues, partnership basis matters, large deductions, related-party transactions, ERC claims, and state follow-on exposure.

Taxpayers should also reconcile returns against information the IRS is likely to receive independently. This includes Forms W-2, Forms 1099, Schedules K-1, brokerage statements, Form 1099-DA, FATCA data, mortgage interest reporting, charitable contribution acknowledgments, payroll tax filings, and state tax filings. Because the IRS is using statistical and machine-learning techniques in audit selection, mismatches and outlier positions are more likely to be identified.

International taxpayers should maintain organized workpapers for FBAR filings, Form 8938, Form 5471, Form 8865, Form 3520, Form 3520-A, PFIC reporting, foreign tax credit calculations, GILTI, Subpart F, Section 962 elections, treaty-based return positions, foreign pensions, and foreign trust analysis. The IRS’s active LB&I campaigns show continued attention to FATCA reporting, offshore private banking, foreign earned income exclusion claims, and Forms 5471.

Digital asset taxpayers should review exchange histories, wallet transfers, cost basis records, staking income, airdrops, NFTs, stablecoin transactions, DeFi activity, lost wallets, and prior-year reporting consistency. Gross proceeds reporting began with 2025 transactions, and basis reporting for certain covered digital asset transactions begins with transactions occurring on or after January 1, 2026.

Taxpayers with ERC claims should separately review eligibility and timing. Section 70605(d) prevents the IRS from allowing or refunding ERC claims for the third and fourth quarters of 2021 after July 4, 2025, if the claims were filed after January 31, 2024. Employers should retain payroll records, gross receipts calculations, government order analysis, copies of amended payroll tax returns, IRS correspondence, and any promoter engagement materials.

Final Thoughts

The 2026 enforcement environment is not defined by audit volume alone. The IRS is smaller than it was at the start of 2025, but it is relying more heavily on data matching, artificial intelligence, third-party reporting, and targeted case selection.

Taxpayers with clean records, consistent reporting, and contemporaneous documentation are in a stronger position if selected for examination. Taxpayers with foreign reporting gaps, digital asset reporting issues, unsupported pass-through positions, high-income return anomalies, or promoter-driven ERC claims should evaluate those risks before the IRS contacts them.

Introduction

Divorce is among the most financially complex events in a person’s life. When international borders are involved, that complexity multiplies. A couple may have built their financial life across two or more countries, holding bank accounts, superannuation or pension funds, real estate, and investment portfolios in multiple jurisdictions, and they are now separating under family law regimes that may be fundamentally incompatible with one another and with U.S. federal and state tax law.

This article addresses the principal U.S. tax issues that arise when families with international ties divorce: the treatment of child and spousal support, the allocation of child-related tax benefits, the transfer of foreign and domestic assets between spouses, the division of foreign retirement plans, and the compliance obligations that follow each party across borders. 

A recurring theme is the gap between what the family court orders and what the tax code permits. Family law practitioners, mediators, and financial advisors focused solely on domestic law frequently produce agreements that are unenforceable or tax-inefficient from a U.S. perspective. Early coordination between international tax counsel and family law counsel, ideally before a settlement agreement is drafted, is essential.

I. Alimony And Spousal Support: The Post-TCJA Landscape

A. The Domestic Baseline: How The TCJA Changed Everything

Prior to 2019, spousal support payments were deductible by the payor and includible in income by the recipient under IRC §§ 71 and 215. The Tax Cuts and Jobs Act of 2017 reversed this treatment for divorce or separation agreements executed after December 31, 2018. Under current law, alimony payments made pursuant to a post-2018 agreement are neither deductible by the payor nor includible in the recipient’s gross income. 

Agreements executed before January 1, 2019, remain subject to the pre-TCJA rules unless the parties affirmatively modify the agreement and elect new-law treatment. This grandfathering rule requires careful attention in modification proceedings since a seemingly minor amendment can inadvertently trigger new-law treatment if not carefully drafted.

B. Cross-Border Complications: Treaty Override And Source Rules

The TCJA change matters in cross-border cases because U.S. income tax treaties were negotiated on the assumption that alimony would be treated consistently with pre-TCJA domestic law. Most U.S. income tax treaties (including those with Australia, the U.K., and France) contain specific provisions governing alimony and support payments.

U.S. – Australia Treaty (Article 18)

Article 18(6) of the U.S.–Australia treaty provides that alimony or other maintenance payments, including child support, arising in one state and paid to a resident of the other state are taxable only in the first-mentioned state.

U.S. – France Treaty (Article 18 — Pensions And Annuities)

The U.S.–France treaty’s pension article should not be treated as a straightforward alimony provision; alimony requires separate treaty and domestic-law analysis. 

U.S. – U.K. Treaty (Article 17)

Under Article 17(5) of the U.S.–U.K. treaty, periodic divorce/support payments are generally exempt in both states unless the payer is entitled to a deduction in the payer’s state of residence, in which case the payments are taxable only in the recipient’s state of residence.

C. Qualified Payments: What The Statute Still Requires

For pre-2019 agreements still subject to the old rules, the requirements of former IRC § 71 continue to govern: payments must be in cash or cash equivalent, pursuant to a written divorce or separation instrument, with no obligation to continue after the payee’s death, and the parties must not be members of the same household. These requirements can be difficult to satisfy in cross-border cases where payments are denominated in foreign currency or routed through foreign accounts.

IRC § 988 foreign currency gain or loss may arise where the payor makes payments in a non-dollar currency. If the obligation is denominated in Australian dollars and the payor uses dollars to acquire Australian dollars for transfer, a § 988 transaction arises on the currency exchange. Whether any § 988 gain or loss is recognized depends on whether the transaction is treated as a personal transaction under Treas. Reg. § 1.988-1(a)(7), which provides a limited exclusion for personal transactions, but only up to $200 of gain per transaction. For recurring support payments, this exclusion is easily exceeded, and currency gain or loss must be tracked.

II. Child-Related Tax Benefits In Cross-Border Divorces

A. Dependency Exemption, Child Tax Credit, And Head Of Household

The child tax credit (up to $2,200 per qualifying child under age 17 for 2025, subject to income phaseouts for tax year 2025), the additional child tax credit, the child and dependent care credit, and the earned income tax credit (EITC) are tied to the concept of a qualifying child. For divorced parents, the allocation of these benefits turns on which parent has primary physical custody, the custodial parent, and whether the custodial parent has executed a Form 8332 release to the noncustodial parent.

The custodial parent is generally the parent with whom the child resided for the greater number of nights during the year. In a cross-border arrangement, counting nights can become genuinely complicated: What if the child spends 180 nights in Australia and 185 nights in the United States, split between two parents? What if the child is enrolled in boarding school in a third country?

The IRS tie-breaker rules for qualifying child status under IRC § 152 are determined by nights spent. The release mechanism under IRC § 152(e). Form 8332 allows the custodial parent to release the dependency and child tax credit to the noncustodial parent for one or more tax years. Critically, the EITC and the head-of-household filing status cannot be transferred via Form 8332. Only the custodial parent qualifies for these benefits, regardless of Form 8332 release.

B. Cross-Border Issues: Non-Resident Alien Spouses And Qualifying Children

Where one parent is a nonresident alien (NRA), and the other is a U.S. citizen or resident, the U.S.-resident parent’s claim for child-related credits depends on whether the child is a U.S. citizen, national, or resident. A child’s U.S. citizenship can satisfy one eligibility element for certain U.S. child-related tax benefits, but qualifying-child status still depends on the applicable residency/custody rules, including the greater-number-of-nights test for divorced parents. A child who is neither a U.S. citizen nor a resident cannot be a qualifying child for most credit purposes.

This creates an acute problem in situations where, following divorce, a U.S.-citizen parent retains physical custody of minor children in the United States, and the NRA parent seeks credit or exemption benefits. Conversely, if the U.S.-citizen parent moves abroad with the children and becomes a bona fide resident of a foreign country, the children may remain qualifying children for U.S. tax purposes (being U.S. citizens), but the parent may face additional foreign tax obligations under local law on the same economic benefits.

C. Dependency and Support Under Foreign Law

In Australian, U.K., and French tax practice, the treatment of child support is generally income-tax neutral, as payments are neither deductible by the payor nor includible in the recipient’s income. This aligns with current U.S. domestic law for child support (which has never been deductible/includible) but creates a clean tax baseline that can simplify negotiations in some respects.

III. Division of Marital Assets: The IRC § 1041 Framework and Its International Limits

A. The § 1041 Nonrecognition Rule

Under IRC § 1041, no gain or loss is recognized on a transfer of property between spouses or incident to a divorce. The transferee spouse takes a carryover basis equal to the transferor’s adjusted basis, regardless of the property’s fair market value at the time of transfer. This rule applies to U.S. property and, as a general matter, to foreign property held by U.S. persons.

The phrase “incident to a divorce” has a specific statutory definition: a transfer occurring within one year after the date the marriage ceases, or a transfer that is related to the cessation of the marriage (i.e., required by the divorce or separation instrument and occurring within six years after the date the marriage ceases). In cross-border cases, it is essential to verify that international asset transfers satisfy this timing requirement before relying on § 1041 nonrecognition.

B. The Critical Exception: Transfers To Or From A Nonresident Alien

Section 1041(d) provides an important and often overlooked exception: the nonrecognition rule does not apply to transfers to or from a nonresident alien spouse. Where the transferor is a U.S. person, and the transferee spouse is a nonresident alien (or vice versa), the transfer is a fully taxable event to the transferor under normal gain recognition rules. This means the transfer is treated as a taxable event, and the transferor must report any gain or loss on their U.S. tax return. The basis of the property for the nonresident alien spouse will be its fair market value at the time of transfer. This provision ensures that the U.S. tax system captures any built-in gain on property transferred to a nonresident alien, who may not be subject to U.S. tax on future dispositions of the property.

This exception has dramatic consequences in cross-border divorces. Consider a U.S. citizen transferring highly appreciated stock, real estate, or cryptocurrency to an NRA spouse as part of a divorce settlement. The transfer is immediately taxable to the transferring spouse at the time of transfer, with gain measured by the difference between fair market value and adjusted basis. 

C. Foreign Property: Additional Complications

In many cross-border divorces, the marital estate includes foreign real estate, foreign bank and investment accounts, and interests in foreign entities. Several additional issues arise:

• FIRPTA And Foreign Real Property – A divorce-related transfer of U.S. real property that qualifies for §1041 nonrecognition is generally exempt from FIRPTA withholding, but FIRPTA can become a problem if §1041 does not apply, for example, because the transferee spouse is a nonresident alien under §1041(d).
• Foreign Real Property – Transfers of foreign real estate between spouses incident to a divorce generally qualify for § 1041 nonrecognition if both parties are U.S. persons. But the foreign jurisdiction’s transfer taxes, stamp duties (Australia’s stamp duty, U.K. Stamp Duty Land Tax, France’s droits de mutation) apply independently and can be substantial.
• Australian Real Property – Australian CGT applies to dispositions of taxable Australian property (TAP), even by non-residents. A divorce transfer of Australian real property may trigger Australian CGT notwithstanding § 1041 U.S. nonrecognition. 
• Foreign Currency Accounts – The division of foreign currency bank accounts between spouses may trigger § 988 gain or loss to the extent the value of the foreign currency has changed from the date the account was opened (or from the date of a § 988 election). Each lot or tranche of currency acquisition has its own basis for § 988 purposes.

IV. Foreign Retirement Plan Division: A Category Without Domestic Analogue

A. The Fundamental Problem: QDROs Don’t Travel

In a domestic U.S. divorce, the division of a qualified retirement plan (401(k), defined benefit pension) is accomplished through a Qualified Domestic Relations Order (QDRO), which allows a tax-free transfer of a retirement benefit to an alternate payee spouse without triggering premature distribution penalties. The QDRO mechanism has no counterpart in most foreign jurisdictions, and foreign retirement orders have no effect under U.S. qualified plan rules.

Conversely, when a U.S. resident spouse is awarded a share of a foreign retirement plan, an Australian superannuation fund, a U.K. SIPP or occupational pension, a French plan d’épargne retraite (PER), or a Singapore CPF account, neither a QDRO nor any domestic mechanism exists to effect the division. The parties must look to the foreign pension law, the applicable bilateral totalization agreement (if any), and U.S. treaty provisions to understand what, if anything, can be transferred and what the U.S. tax consequences are.

B. Australian Superannuation

Australia allows splitting of superannuation accounts upon divorce under the Family Law Act 1975 via a superannuation splitting order or agreement. The split creates a new interest for the non-member spouse in the same (or a different) fund. 

For U.S. tax purposes, Australian superannuation funds held by U.S. persons may be subject to the onerous PFIC rules if the fund invests in pooled foreign mutual fund structures (which most do). 

Distributions from an Australian superannuation fund to a U.S. person may be taxable in the United States. The U.S.–Australia treaty does not expressly exempt superannuation distributions from U.S. tax, as the U.K. treaty does for U.K. pensions. 

C. U.K. Pensions (SIPP And Occupational)

The Revenue Procedure 2020-17 exempts certain tax-favored foreign non-employer retirement plans (including U.K. SIPPs that meet the relevant criteria) from the otherwise onerous annual Form 3520 foreign trust reporting requirements, provided the individual meets the applicable $600,000 value threshold and contribution requirements. This is a compliance simplification, not a substantive tax exemption.

Upon divorce, a U.K. pension sharing order may transfer a percentage of the SIPP or occupational pension to the former spouse. If the recipient is a U.S. person, the transferred interest remains within the U.K. pension wrapper and retains its U.K. tax-deferred status, but the U.S. tax treatment depends entirely on whether the fund continues to qualify for treaty protection under Article 17 of the U.S.–U.K. treaty.

Article 17(1)(a) is the general residence-state rule, and Article 17(1)(b) is a separate exemption carveout for certain scheme-based amounts.

D. French Pensions And Retirement Plans

France’s plan d’épargne retraite (PER) and mandatory occupational pension regimes (ARRCO/AGIRC) present particular difficulty in divorce planning. France’s mandatory pension system does not permit the type of capital transfer contemplated by U.S. QDRO law, retirement benefits are typically accrued as annuity rights, not as a segregated account balance, and the family court may award a compensatory share (prestation compensatoire) rather than a direct pension interest.

U.S.–France treaty. Under Article 18(1) of the U.S.–France treaty, as amended by the 2009 Protocol, pensions and similar remuneration are generally taxable only in the first-mentioned State, meaning the state where the pension arises / source state, not the recipient’s state of residence. For a U.S. citizen, however, the saving clause in Article 29(2) must still be considered unless an Article 29(3) exception applies. 

V. Tax Implications of Cross-Border Custodial Relocations

A. When A Parent Relocates Internationally With Children

International relocation by a custodial parent raises a distinct set of U.S. tax issues. Once a parent establishes residency abroad, that parent may be subject to foreign income tax on U.S.-source income, including support payments, investment income, and wages. The interaction between the U.S. foreign earned income exclusion (IRC § 911), the foreign tax credit (FTCs under IRC §§ 901–908), and the child-related tax benefits requires careful modeling.

A U.S.-citizen parent living abroad may elect the IRC § 911 foreign earned income exclusion, which for 2025 is $130,000. If the parent’s only U.S.-source income is child or spousal support (which is non-includible for post-2018 support), the § 911 exclusion may have limited practical relevance. However, if the parent earns wages abroad, the § 911 exclusion interacts with the child tax credit in a non-obvious way: the additional child tax credit computation under IRC § 24(d) uses earned income, but § 911 excluded earned income does not count for this purpose. The net result is often a reduced or eliminated refundable child tax credit for U.S.-citizen parents living abroad.

B. Exit Tax Considerations

An NRA parent who relinquishes U.S. long-term resident (green card) status in connection with or following a divorce may be subject to the mark-to-market exit tax under IRC § 877A if they are a covered expatriate. The thresholds for covered expatriate status include: (1) net income tax liability exceeding $206,000 (for 2025 expatriations) for five years before expatriation; (2) net worth of $2,000,000 or more on the date of expatriation; or (3) failure to certify compliance with U.S. tax laws for the five prior years.

In divorce planning, the timing of green card surrender by the NRA spouse can dramatically affect the economic outcome. If the marital estate includes deferred income assets (unvested stock options, partnership interests with embedded gain, retirement accounts), the exit tax treatment of those assets as deemed sold on the date of expatriation may be triggered at the same time as the divorce-related property transfers. Coordinating § 1041, the § 877A exit tax, and the NRA exception of § 1041(d) requires careful sequencing of the transaction steps.

C. Hague Convention Abductions And Tax: An Overlooked Intersection

Where one parent unilaterally removes a child from the United States to a foreign country in violation of a custody order, the non-relocating parent faces not only a family law crisis but potentially complex tax issues. During periods of wrongful retention, the non-relocating parent may continue to qualify as the custodial parent under U.S. tax law based on the pre-relocation custody arrangement, but proving the factual predicate for that position and navigating foreign jurisdiction tax treatments simultaneously creates significant practical difficulty.

VI. Foreign Account Reporting Post-Divorce: FBAR, FATCA, And The Aftermath

A. Individual Liability Following Joint Account Division

During marriage, U.S. persons holding foreign financial accounts typically file joint FinCEN Form 114 (FBAR) reporting for jointly held accounts. Upon divorce, each spouse’s individual FBAR obligation depends on their continuing financial interest in or signatory authority over foreign accounts. The division of joint foreign accounts requires not only the actual transfer of funds, but the removal of each party from accounts they no longer beneficially own — failure to do so creates continuing FBAR filing obligations and potential liability for accounts the party no longer controls.

Similarly, FATCA reporting on Form 8938 follows the individual taxpayer after divorce. If the divorce agreement assigns foreign accounts to one spouse, the other spouse’s Form 8938 filing obligation terminates only when the accounts are actually removed, not when the decree is entered. Practitioners should include explicit provisions in the settlement agreement requiring account transfers to be completed within a specified period and conditioning the settlement on confirmation of the account changes.

B. Foreign Entity Interests And Information Returns

Where the marital estate includes interests in foreign entities, such as foreign corporations, foreign partnerships, foreign trusts, or PFICs, the divorce may create or eliminate the threshold ownership requirements that trigger U.S. information return obligations (Forms 5471, 8865, 3520, 8621). For example, if the marital community owned 51% of a foreign corporation and the divorce results in each party receiving 25.5%, the 10% ownership threshold for Form 5471 Category 5 filing may still be met by each party, but the 50% constructive ownership requirement for Category 4 filing is no longer met by either party individually. This reorganization of filing obligations must be mapped in the post-divorce compliance calendar.

Inherited PFIC interests in Australian managed funds or French OPCVM are particularly problematic. The PFIC regime’s annual disclosure and election requirements continue for each holder independently post-divorce, and the new holder is subject to the same rules as the original holder for prior holding period QEF and MTM elections (or lack thereof). If the original holder did not make a QEF election, the new holder may face the harsh excess distribution rules on the entire holding period’s accumulated income.

VII. California-Specific Considerations

A. Community Property And International Assets

California is a community property state, and the community property rules significantly affect the characterization of foreign assets in divorce. Earnings and acquisitions during the marriage are generally community property regardless of where they are located or in which currency they are denominated. However, the community property treatment of assets located in common law foreign jurisdictions (the U.K., Australia, France) is not always mirrored by those jurisdictions’ domestic law; a foreign jurisdiction may treat an asset as solely owned by the titled spouse even if California law would characterize it as community property.

California’s transmutation rules (Family Code § 852) require that transfers of property between spouses be in writing and expressly declared to be a transmutation. In the context of cross-border asset transfers, oral representations or conduct that might suffice to establish a transfer in some foreign jurisdictions are ineffective under California law to change community property characterization. This has practical significance when analyzing the basis for § 1041 nonrecognition, as the writing requirement must be satisfied for the transfer to qualify.

B. California’s Non-Conformity To TCJA Alimony Treatment

For California returns for instruments executed from January 1, 2019 through December 31, 2025, California did not conform to the federal TCJA alimony change. Beginning January 1, 2026, California generally conforms for new instruments and certain modified instruments that elect in.

C. Nonresident Withholding And Support Payments

If a California-resident payor makes support payments to a nonresident of California, California nonresident withholding requirements (R&TC §§ 18662–18668) may apply to California-source income of the payee. However, because spousal support is generally not California-source income to the payee (it is sourced to the payor’s residence), the withholding requirement typically does not apply to routine support payments. Practitioners should nonetheless confirm the sourcing analysis where the payor has complex California-source income that is being paid through a trust or entity structure.

Conclusion

Cross-border divorce tax planning is a discipline that demands expertise in U.S. federal international tax, applicable treaty law, U.S. and foreign retirement plan rules, and sometimes state community property law.

The most important practical advice: involve international tax counsel in the drafting process, not in the review process. Reviewing a final settlement agreement for tax implications is dramatically more difficult and less effective than participating in the drafting of the agreement from the outset. The tax structure of a settlement is not a secondary concern; it is a primary determinant of economic outcome.

When Australian business owners talk to me about entering the US, the conversation usually starts where it should – growth. 

A bigger market, deeper capital, more customers, stronger partnerships.

The opportunity is real. What is often underestimated, though, is how quickly momentum can slow due to tax and reporting issues that were never properly mapped at the start. In the US, you are rarely dealing with one simple compliance system. Federal rules are only part of the picture. State tax, registration and sales tax obligations can arrive much earlier than many businesses expect.

One of the first things I usually encourage clients to think through carefully is the entity itself. 

Too often, the structure is treated as something that can be tidied up later. In practice, that can be an expensive mistake. A C corporation files Form 1120 and is taxed separately. A partnership files Form 1065 and pushes tax items out to the owners through Schedule K-1. A single-member LLC is generally disregarded for US income tax purposes unless it elects to be taxed as a corporation. On paper that may sound technical, but commercially it matters a great deal, because the wrong structure can create complexity long before the business has properly found its feet.

If an Australian group is looking at a US LLC, I would be especially careful. Where a foreign-owned US disregarded entity has reportable related-party transactions, Form 5472 can come into play, and it is filed with a pro forma Form 1120. The penalty for missing that filing starts at $25,000. That is exactly the kind of issue that catches decent businesses off guard—not because they are doing anything aggressive, but because nobody warned them early enough that the reporting obligation existed in the first place.

The state-tax piece is where many founders realise that the US is less one market and more fifty overlapping systems. Sales tax, state income tax, franchise tax and registration obligations can arise in different ways and at different times. Even the “business-friendly state” conversation needs a bit of nuance. Texas has franchise tax, Florida has corporate income/franchise tax, and many states now apply economic nexus rules that can pull remote sellers into registration and collection once thresholds are met.

Financial reporting deserves a little more attention than it usually gets at the start as well. In a public company context, SEC reporting can mean ongoing Form 10-K and Form 10-Q filings. More broadly, US financial reporting still revolves around GAAP. In practice, the challenge is often not understanding the theory, but ensuring the US numbers can be reported cleanly and consistently within the wider group without constant rework.

Hiring in the US is another area where practical business decisions and compliance meet very quickly. Employers generally need to withhold federal income tax and Social Security and Medicare taxes from wages, and most employers also need to deal with unemployment taxes at both federal and state levels. On top of that, worker classification matters. The IRS looks at the full relationship and the degree of control, not just what the contract happens to call someone. That is why I always say that calling a person a contractor is not the same thing as them actually being one.

Once the US business starts moving money across borders, the international rules need to be treated seriously. US persons with foreign financial accounts may have an FBAR filing obligation once aggregate balances exceed $10,000, and intercompany charges between an Australian parent and a US operation need to satisfy the arm’s-length standard. The best time to think about that is before the structure goes live, not halfway through an audit trail reconstruction exercise.

The good news is that none of this is unmanageable. 

But it does reward businesses that treat tax and financial reporting as part of commercial strategy, rather than as admin to be cleaned up later. 

The businesses that usually do well in the US are not always the ones that move fastest. They are often the ones that enter with the clearest structure, the best discipline and the fewest surprises. In my experience, that is where good advice still pays for itself.

CHECKLIST: Australia – US Market Entry Checklist

A Practical Analysis Of Treaty Interpretation And The Quid Pro Quo Test

Spoiler Alert: If you have a boss, get performance reviews, and can be fired for poor work, you probably have a job and not a grant.

The recent Tax Court decision in Baturin v. Commissioner (T.C. Memo. 2026-12) provides valuable guidance on distinguishing between tax-exempt grants and taxable compensation under international tax treaties. After a Fourth Circuit remand, the Tax Court granted summary judgment to the IRS, clarifying when payments to researchers qualify for treaty exemptions.

This case offers important lessons for nonresident researchers working in the United States and the institutions that employ them.

Background And Treaty Provision

Dr. Baturin, a Russian citizen, worked at Jefferson Lab (a Department of Energy facility in Virginia) from 2007 to 2015. During tax years 2010-2011, he received approximately $76,000-$79,000 annually for his work on the 12 GeV Upgrade Project involving particle detector systems.

Article 18 of the U.S.-Russia Tax Treaty provides an exemption from U.S. taxation for individuals “studying or doing research as a recipient of a grant, allowance, or other similar payment from a governmental, religious, charitable, scientific, literary, or educational organization.”

Dr. Baturin claimed this exemption, arguing that his compensation qualified as a tax-exempt grant. The IRS disagreed, asserting that the payments constituted taxable wages for services rendered.

Procedural History and the Fourth Circuit Remand

The Tax Court initially ruled in Dr. Baturin’s favor in 2019 (Baturin I, 153 T.C. 231), finding that his compensation qualified as a tax-exempt grant under the treaty.

The Fourth Circuit reversed and remanded in 2022 (Baturin II, 31 F.4th 170). The appellate court instructed the Tax Court to apply the analytical framework set forth in IRC Section 117 and its implementing regulations, which distinguish between “Disinterested, no-strings educational grants” (tax-exempt) and “Work done as part of a substantial quid pro quo” (taxable compensation). 

The Fourth Circuit provided specific factors for the Tax Court to consider on remand, such as (1) would Jefferson Lab have hired someone else if Dr. Baturin were unavailable? (2) Did the projects pre-date and post-date his tenure? (3) Who retained the intellectual property rights? (4) How much discretion did Dr. Baturin have over his day-to-day work? (5) Was there a substantial quid pro quo?

Summary Judgment Analysis

On remand, the Commissioner moved for summary judgment, arguing that the undisputed facts established Dr. Baturin’s payments were compensation rather than grants. Dr. Baturin, proceeding pro se, raised several procedural arguments but failed to present specific facts creating a genuine dispute of material fact.

The Court analyzed the Fourth Circuit’s factors:

1. Replaceability

Jefferson Lab confirmed through Dr. Burkert’s declaration that the institution would have hired another qualified individual if Dr. Baturin had not been available. This indicated the position was not dependent on Dr. Baturin’s unique contributions but rather required any qualified scientist to perform specified duties.

2. Project Independence

The 12 GeV Upgrade Project commenced before Dr. Baturin’s employment in 2007 and continued after his departure in 2015. As of December 2024, the CTOF detector remains operational. This demonstrated that the research project existed independently of Dr. Baturin’s participation.

3. Intellectual Property Rights 

As a condition of employment, Dr. Baturin signed an agreement assigning all intellectual property rights from his work to Jefferson Lab. This arrangement is characteristic of an employment relationship rather than an independent research grant.

4. Supervision And Performance Review

Dr. Baturin worked under the supervision of Dr. Burkert (his direct supervisor) and Dr. Eloaudrhiri (project manager). His performance was evaluated annually, and his continued employment was contingent upon satisfactory performance reviews. These elements are consistent with an employer-employee relationship.

5. Substantial Quid Pro Quo

Jefferson Lab provided bi-weekly compensation in exchange for Dr. Baturin’s services on assigned projects. The Court found that “Jefferson Lab’s bi-weekly payments to Dr. Baturin were not disinterested, no-strings grants, but rather were a quid pro quo in exchange for his assigned work on the 12 GeV Upgrade Project.”

Legal Framework: Section 117 And Revenue Ruling 80-36

The Fourth Circuit directed the Tax Court to apply principles from IRC Section 117 (qualified scholarships) to interpret the treaty language. Under this framework, courts distinguish between payments that support independent study or research, and compensation for services rendered under supervision that primarily benefit the payor.

The Court also cited Revenue Ruling 80-36 (addressing researchers under the U.S.-Japan Income Tax Convention), which provides that payments are taxable when a researcher is “performing valuable research services under the supervision of the grantor that are primarily for the benefit of the grantor.”

Applying these principles, the Court concluded that Dr. Baturin’s payments constituted taxable compensation rather than tax-exempt grants.

Key Procedural Issues

Dr. Baturin’s pro se representation led to several procedural difficulties:

Confusion Between Withholding and Liability.

Dr. Baturin argued that withholding exemptions under Section 1441 established tax exemption. The Court clarified that withholding requirements imposed on payers are distinct from the taxpayer’s underlying tax liability.

Impermissible New Arguments On Remand

The Court applied the mandate rule, noting that Dr. Baturin raised arguments on remand that were not presented to the Fourth Circuit. Under the law of the case doctrine, remand proceedings are not appropriate for introducing new legal theories.

Failure To Create Genuine Factual Disputes

When opposing summary judgment, Rule 121(d) requires the non-moving party to present specific facts supported by appropriate evidence. Dr. Baturin’s responses were largely speculative (e.g., “this may be a subject to the genuine dispute”) rather than presenting concrete evidence disputing the Commissioner’s factual assertions.

Practical Implications For Research Institutions And Foreign Nationals

This decision provides important guidance for determining when payments to researchers qualify for tax treaty exemptions. The “Baturin factors” establish a framework for analysis. 

Would the institution hire an alternative candidate if the individual were unavailable? Does the research project exist independently of the individual’s participation? Who retains ownership of the intellectual property? Does the individual work under supervision with performance evaluations? Is there a substantial quid pro quo relationship?

When these factors indicate an employment relationship—characterized by assigned work, supervision, performance reviews, and institutional control over work product—payments constitute taxable compensation regardless of the research nature of the work.

The distinction is not based on the importance or value of the research, but rather on the structural relationship between the payor and payee.

Conclusion

The Tax Court granted summary judgment to the Commissioner, finding that Dr. Baturin’s payments from Jefferson Lab constituted taxable compensation rather than tax-exempt grants under Article 18 of the U.S.-Russia Tax Treaty.

The decision emphasizes that treaty interpretation requires careful analysis of the actual relationship between parties rather than reliance on labels. Employment relationships characterized by supervision, performance reviews, assigned duties, and institutional ownership of work product result in taxable compensation, regardless of whether the work involves research or advances scientific knowledge.

Key Takeaways

Treaty language must be interpreted in context: The terms “grant, allowance, or other similar payment” require analysis of the underlying relationship, not merely the characterization of payments.

The Quid Pro Quo Test Is Determinative –  When payments represent compensation for services that primarily benefit the payor, they constitute wages rather than grants.

Proper Legal Representation Matters – Complex tax treaty issues benefit from professional guidance, particularly when procedural requirements demand specific evidence and timely presentation of arguments.

Note On Treaty Status -The U.S.-Russia Tax Treaty was suspended effective August 16, 2024. However, the analytical framework established in Baturin—particularly the quid pro quo test and the application of Section 117 principles to treaty interpretation—remains applicable to similar provisions in other U.S. tax treaties.

Final thought: The Tax Court has now definitively confirmed that calling your paycheck a “grant” doesn’t make it one. No matter how impressive the research. 

If you live internationally, run an online business, invest across borders, or use platforms like Wise to manage multiple currencies, you may be wondering:

Do I need to report my Wise account to the IRS?

The answer depends on one key factor:
Where the account is legally held, and not the currency and not the routing number.

Let’s break this down clearly.

The Two Reporting Regimes: FBAR And FATCA

U.S. taxpayers may need to report foreign accounts under:

1. FBAR (FinCEN Form 114)

You must file an FBAR if:

• You are a U.S. person (citizen, green card holder, or U.S. tax resident), and
  
• The total value of all your foreign financial accounts exceeds $10,000 at any time during the year.

2. FATCA (Form 8938)

This form is filed with your tax return and applies if your foreign financial assets exceed higher thresholds (which vary based on where you live and your filing status).

Both rules focus on whether an account is foreign.

What Actually Makes An Account “Foreign”?

This is where confusion happens.

An account is considered foreign if it is maintained by a financial institution located outside the United States.

That’s it.

Not:

• The currency
• The interface language
• The debit card logo
• The routing number format

What matters is which legal entity holds your account and where that entity is regulated.

Common Misconceptions About Wise Accounts

Wise operates through multiple regulated entities around the world, including in the U.S., UK, Belgium, and elsewhere.

Depending on your residency and how you opened the account, your Wise account may be held by:

• A U.S. entity (domestic), or
• A non-U.S. entity (foreign)

Important Clarifications

• Just because your Wise account holds USD does NOT mean it is domestic.
• Just because your account holds EUR does NOT mean it is foreign.
• Just because your account uses U.S. payment rails (like an ABA routing number) does NOT mean it is domestic.

Payment rails are not the legal location of the financial institution.

An account can:

• Hold U.S. dollars,
• Have an ABA routing number,
• Send ACH payments,

and still be legally maintained by a foreign financial institution.

Simple Examples

Example 1: USD Account That Is Foreign

You live abroad and open a Wise account. It holds only U.S. dollars. It has an ABA routing number.

However, your account is maintained by Wise’s UK or EU entity.

That account is considered foreign for FBAR and FATCA purposes.

If your total foreign accounts exceed $10,000 at any point during the year, it must be reported.

Example 2: EUR Account That Is Not Foreign

You live in the United States and open a Wise account issued by Wise’s U.S. entity. You hold euros in it.

Even though the balance is in EUR, the account is maintained in the United States.

That account is generally not foreign for FBAR purposes.

Currency does not determine reporting — location does.

Why This Matters

Many internationally mobile professionals and online entrepreneurs:

• Hold multiple currency balances
• Move funds across borders frequently
• Use fintech platforms instead of traditional banks
• Assume “digital” means “not foreign”

That assumption can create compliance risk.

FBAR penalties can be severe — even for non-willful violations.

How to Determine If Your Wise Account Is Foreign

Here’s what you should check:

1. Review your account terms and conditions.
   
2. Look at your statements — they usually identify the regulated entity.
   
3. Confirm which Wise legal entity services your account.
   
4. Identify where that entity is regulated.

If the account is maintained by a non-U.S. entity, it is generally considered a foreign financial account.

Aggregation Rule (Often Overlooked)

For FBAR purposes:

You must combine the maximum balances of all your foreign accounts.

If the total exceeds $10,000 at any point during the year, you must report all of them — even if each individual account is small.

Wise accounts count toward that total if they are foreign.

Bottom Line

When it comes to FBAR and FATCA:

• USD does not mean domestic.
  
• EUR does not mean foreign.
  
• An ABA routing number does not make an account U.S.-based.
  
• Digital platforms are not automatically exempt.
  
• The legal location of the institution controls.
  

If you operate internationally and use modern fintech tools, it’s critical to analyze your accounts properly rather than relying on assumptions based on currency or payment systems.

When in doubt, verify the entity and not the interface.

International divorce frequently triggers a foreign-asset reporting cascade: accounts that were previously “handled by the other spouse,” jointly titled assets that get split, and new single-filer thresholds can turn a historically quiet situation into an immediate U.S. compliance problem, often with large civil penalties and, in willful cases, criminal exposure. The enforcement environment is also more aggressive, with enhanced IRS enforcement funding and more sophisticated analytics, increasing the likelihood that previously missed foreign reporting gets detected.

Foreign Asset Reporting: The “Big Three” Regimes (Quick Comparison)

Regime	What It Reports	Where Filed	Core Trigger	Due Date (for 2025 calendar year)	Key Penalty Framework
FBAR (FinCEN Form 114)	Foreign financial accounts (including bank, securities, some insurance/annuity accounts)	Separately from the tax return (FinCEN e-filing)	Aggregate foreign account value > $10,000 at any time during the year (all foreign accounts combined)	April 15, 2026 with automatic extension to October 15, 2026	For 2025 (inflation-adjusted): non-willful up to $16,536 per report; willful greater of $165,353 or 50% of the account balance per violation; criminal possible
FATCA (Form 8938)	Specified foreign financial assets (broader than FBAR: accounts plus many non-account assets like foreign stock/partnership interests, foreign pensions, etc.)	Attached to annual income tax return	Filing-status/residency thresholds (often $50,000/$75,000 for U.S. residents who are single/MFS)	Due with Form 1040 (generally April 15; expats often June deadline)	$10,000 failure-to-file plus $10,000 per 30 days after IRS notice up to $50,000
Foreign trust reporting (Forms 3520 / 3520-A)	Foreign trust transfers, distributions, ownership, gifts and annual foreign trust reporting	IRS (information returns)	Triggered by foreign trust transactions/ownership (common in international family wealth and divorce settlements)[1]	Form 3520-A due 15th day of 3rd month after trust year-end (calendar-year trust: March 15; 6‑month extension available via Form 7004)	Form 3520: often greater of $10,000 or 35% of reportable amount (depending on part); Form 3520‑A: generally greater of $10,000 or 5% of gross reportable amount

Critical Overlap Point: Filing Form 8938 does not replace FBAR. If you meet both sets of rules, you generally file both.

FBAR (FinCEN Form 114): What Divorce Changes (And Why It Gets Missed)

The Filing Trigger (The “$10,000 Aggregate” Test)

FBAR is required when the aggregate value of all foreign financial accounts exceeds $10,000 at any time during the year, a low threshold that is easy to cross when accounts exist in multiple countries or when a spouse holds several accounts.

Divorce-Specific Trap: People often assume FBAR only applies if they own the account. In divorce situations, the risk is that a taxpayer had signature authority or another filing obligation over accounts tied to the other spouse (for example, family business accounts or accounts in the spouse’s name).

Deadline And Extension (For 2025 Accounts)

For the 2025 calendar year, the FBAR is due on April 15, 2026, with an automatic extension to October 15, 2026 (no separate extension form required).

Recordkeeping Expectation (Practical Audit Defense)

FBAR filers should retain supporting documentation with their tax records for at least five years.

In a divorce context, that retention period matters because spouses may lose access to account statements during or after separation; proactively preserving statements and proof of balances is often essential.

Penalties (Inflation-Adjusted Amounts For 2025)

• Non-Willful FBAR Penalty (Civil) – up to $16,536 per report
• Willful FBAR Penalty (Civil) – the greater of $165,353 or 50% of the account balance per violation

Criminal exposure is possible (especially in willful scenarios).

These numbers underscore why “we didn’t know” is not a strategy, particularly when divorce discovery, bank files, and cross-border information flows can surface old accounts.

Statute Of Limitations (Why Old Years Can Still Be In Play)

Standard audit limitation periods may not protect taxpayers when foreign reporting is missing. FBAR has a six-year period, and for certain failures (and fraud) older years may remain examinable.

FATCA Form 8938: “Specified Foreign Financial Assets” And Why Filing Status Changes Matter

What Form 8938 Covers (Broader Than Bank Accounts)

Form 8938 is required for certain U.S. taxpayers who hold specified foreign financial assets exceeding applicable thresholds. The IRS describes the basic rule as reporting when aggregate value exceeds $50,000 (with thresholds varying by taxpayer circumstances).

Form 8938 reaches beyond bank accounts and can include:

• foreign securities,
• foreign partnership/corporate interests,
• trusts, and
• foreign pensions.

This breadth is exactly why divorce restructurings (splitting entities, transferring shares, receiving pension rights) can suddenly trigger reporting even if “no foreign bank account” exists.

The Thresholds (Treas. Reg. §1.6038D-2): U.S. Residents vs. Living Abroad

The filing requirement turns on aggregate value exceeding a threshold that depends on residency and filing status.

Below are the thresholds expressly stated in the Form 8938 regulations:

Taxpayers Living In The U.S.

• Unmarried / Married Filing Separately – file if aggregate value exceeds $50,000 on the last day of the year or $75,000 at any time during the year.
• Married Filing Jointly – file if aggregate value exceeds $100,000 on the last day of the year or $150,000 at any time during the year.

Taxpayers Living Abroad (Qualified Individuals Under §911(d)(1))

• Unmarried (Or Not Filing Jointly) –  file if aggregate value exceeds $200,000 on the last day of the year or $300,000 at any time during the year.
• Married Filing Jointly (Living Abroad) –  file if aggregate value exceeds $400,000 on the last day of the year or $600,000 at any time during the year.

Divorce-Specific Trap: filing status changes (e.g., moving from married filing jointly to single or married filing separately) can materially lower the applicable threshold and create a new Form 8938 requirement even when the assets did not change. The regulation thresholds above show why: the U.S.-resident MFJ threshold is $100,000/$150,000, but single/MFS is $50,000/$75,000.

Deadline (Tied To The Income Tax Return)

Form 8938 is filed with the annual income tax return (as an attachment), not separately like FBAR. This creates a common divorce-year failure mode: the return gets filed on time, but the foreign asset schedule is omitted, even when FBAR was filed (or vice versa).

Penalties (And Why They Can Snowball)

• Initial Failure-To-File Penalty –  $10,000
• Continuation Penalty After IRS Notice – $10,000 for every 30 days of continued noncompliance after notice, up to $50,000 maximum (per year)

Statute Of Limitations Risk

Missing Form 8938 can keep the statute of limitations open, which means taxpayers may find that very old years are still exposed once the IRS identifies an unreported foreign asset footprint.

Foreign Trust Reporting (Forms 3520 And 3520-A): The Divorce Settlement Danger Zone

International divorces frequently involve structures that are “trust-like” (even when they aren’t labeled as such), offshore family arrangements, or wealth vehicles that make distributions or transfers as part of a settlement. 

Form 3520 – when penalties can be a percentage of the transfer/distribution.

The Internal Revenue Manual section provided includes detailed penalty computations that are especially important in divorce cases because transfers/distributions are exactly what settlements do.

For late-filed Form 3520, the IRS penalty computation depends on what is being reported:

If Form 3520 Part I (generally, certain foreign trust transactions such as transfers) is triggered, assess a penalty equal to the greater of $10,000 or 35% of the total amount reported (with specific line references in the IRM guidance).

• The IRM also provides that the aggregate penalty for Part I cannot exceed the gross reportable amount.
• The IRM similarly limits the aggregate penalty so it cannot exceed the gross reportable amount.

If Form 3520 Part III (generally, certain foreign trust distributions) is triggered, assess a penalty equal to the greater of $10,000 or 35% of the amount reported (again with detailed line references).

Form 3520-A: Annual Return For Foreign Trusts With A U.S. Owner

A foreign trust must file Form 3520-A annually when a U.S. person is treated as an owner of any portion of the foreign trust under the grantor trust rules (sections 671–679), and Form 3520-A includes required owner and beneficiary statements.

To avoid penalties for failure to timely file Form 3520-A, the U.S. owner must ensure the foreign trust timely files it, or the U.S. owner must file a substitute Form 3520-A with a timely-filed Form 3520.

Due Date

Form 3520-A is due the 15th day of the 3rd month following the end of the trust’s tax year (e.g., for a calendar-year trust, March 15), with a 6-month extended due date if the trust files an extension (Form 7004).

Penalty Framework (Form 3520-A)

The IRM states: the initial penalty for failure to file Form 3520-A generally is the greater of $10,000 or 5% of the gross reportable amount, where the gross reportable amount is the gross value of the portion of the trust’s assets treated as owned by each U.S. owner at year-end.

A Key Practical Point: “FBAR vs. Form 8938” Is Not Either/Or

A recurring compliance failure in international divorce matters is assuming that one form “covers” the other. It does not.

Form 8938 is filed with the IRS as part of the income tax return and covers “specified foreign financial assets.”

FBAR is a separate filing with its own threshold and due date mechanics (including automatic extension).

Filing Form 8938 does not relieve the taxpayer from filing FBAR when the FBAR rules are triggered.

Divorce Implication: You can be “compliant” on the tax return and still have FBAR exposure, or you can have FBAR filed and still have Form 8938 exposure, especially after filing status changes lower the 8938 threshold.

Common International Divorce Reporting Triggers That Deserve Special Attention

“I Never Benefited From The Account” (But Had An Obligation)

Divorce can reveal unrecognized historical obligations tied to a spouse’s accounts or business (including signatory authority). This matters because the FBAR regime is driven by account access/relationship and aggregate balances, not just whether you considered it “your money.”

Filing Status Shift Can Turn “No Form 8938” Into “Form 8938 Required”

The reporting thresholds change significantly when filing status changes (MFJ to single/MFS), creating new reporting requirements. The regulation thresholds show exactly how large the shift can be for U.S. residents: $100,000/$150,000 (MFJ) versus $50,000/$75,000 (single/MFS).

Trust Structures Embedded In Settlements (Or Foreign “Pensions” That Behave Like Trusts)

If a settlement causes a transfer to a foreign trust or a distribution from one, the IRM penalty computations show why the exposure can be economically severe (35% regimes for certain Form 3520 failures; 5% asset-value penalty for certain Form 3520-A failures).

Deadlines And “Hidden” Annual Compliance Calendars

FBAR – April 15 with automatic extension to October 15 (for 2025, due April 15, 2026 / Oct 15, 2026).

Form 8938 –  with the tax return.

Form 3520-A – March 15 for calendar-year trusts (15th day of the 3rd month), extension possible via Form 7004.

International divorce clients often focus on the divorce timeline (court deadlines, settlement deadlines) and miss that these compliance calendars run independently.

Old-Year Exposure Can Persist When Foreign Reporting Is Missing

For most tax issues, the IRS has three years to audit (six years if the income understatement exceeds 25%). But foreign reporting failures have different rules:

• No Form 8938 File – Statute never begins to run on the entire return
• No FBAR Filed – Six-year statute of limitations under Bank Secrecy Act
• Fraudulent Return –  No statute of limitations ever

Real-World Impact: The IRS can audit a 2015 return in 2026 if foreign asset reporting was required but not filed.

Conclusion: International Divorce Turns “Foreign Assets” Into An Active Compliance Event

The foreign reporting rules are deliberately complex. The IRS uses this complexity as a weapon, assuming that confusion equals willful violation. In international divorce cases, the complexity multiplies because you’re dealing with:

• Changing filing statuses mid-year
• Assets you may not have known existed
• Reporting obligations that weren’t yours during marriage but became yours after divorce
• Settlement agreements that don’t account for international tax issues

When divorce changes ownership, access, filing status, and documentation availability all at once, the safest posture is to treat foreign-asset reporting as its own workstream—with clear form-by-form mapping, threshold testing, deadline management, and record retention aligned to the regimes above.

A Practical Checklist For Australians Moving To The United States

Moving from Australia to the United States is exciting, but the first U.S. tax season can feel like stepping into a maze. The U.S. tax system is far more document-driven and globally focused than Australia’s, and many new arrivals are caught off guard by what the IRS expects.

The good news? With the right preparation before you move, your first tax season can be far less stressful. Here’s a checklist of items every Australian should gather and understand before relocating to the U.S.

1. Clear Records Of Your Move Date (This Matters More Than You Think)

Your exact date of arrival in the U.S. is critical. U.S. tax residency is not based on intention—it’s based on days physically present. You also need to have records of any dates you’ve left (even for temporary travel) the U.S. once you’ve moved.

Have on hand:

• Flight itineraries and entry stamps
• Visa start date
• Lease agreements or housing contracts
• Any travel dates after your move to the U.S.

These dates determine whether you’re treated as:

• A nonresident,
• A dual-status taxpayer, or
• A U.S. tax resident for that year

This classification drives everything that follows.

2. Copies Of Your Most Recent Australian Tax Returns

Bring at least the last two years of:

• Australian individual tax returns
• Notices of assessment
• PAYG summaries or income statements

These help:

• Establish income earned before U.S. residency
• Support treaty positions
• Substantiate foreign tax credits later

Even income that won’t be taxed again in the U.S. often needs to be reported.

3. A Full Snapshot Of Your Worldwide Income (Not Just Salary)

The U.S. taxes based on citizenship and residency, not source. Once you’re a U.S. tax resident, the IRS wants to see everything.

Prepare documentation for:

• Australian employment income
• Bonuses paid after you leave (even if earned before)
• Rental income
• Dividends and interest
• Trust or partnership distributions

If it earned money anywhere in the world, assume the U.S. cares.

4. Details Of All Australian Bank Accounts

Many Australians are surprised to learn that foreign bank accounts are a major U.S. compliance issue, not a minor one.

You’ll want:

• Bank names and addresses
• Account numbers
• Maximum balances during the year

Why this matters:

• Accounts may trigger FBAR and FATCA reporting
• Penalties for missing these forms can be severe even when no tax is owed

This includes everyday savings and transaction accounts. 

5. Information On Your Superannuation Accounts

Australian superannuation is one of the most misunderstood areas in U.S.–Australia tax planning.

Before moving, gather:

• Super fund statements
• Employer vs personal contribution history
• Withdrawal restrictions

The U.S. does not treat super the same way Australia does. In some cases:

• Earnings may be taxable annually
• Reporting obligations may apply even if funds are locked until retirement

This is an area where advance planning pays off.

6. Investment And Asset Purchase Records

If you own assets, documentation is essential to avoid double taxation later.

Bring records for:

• Australian shares or ETFs
• Property purchase contracts
• Cost base and acquisition dates
• Crypto transaction history

The U.S. uses different rules for:

• Capital gains
• Depreciation
• Currency conversion

Without records, you may pay more tax than necessary.

7. Visa And Immigration Documents

Your visa type can affect how the IRS views you.

Have copies of:

• Visa approval notices
• I-94 arrival records
• Employment authorization documents

Certain visas may qualify for:

• Treaty benefits
• Temporary exemptions from residency tests

But these benefits are time-limited and documentation-dependent.

8. Awareness Of The U.S.–Australia Tax Treaty

The tax treaty can:

• Prevent double taxation
• Modify how certain income is taxed
• Provide tie-breaker rules for residency

But treaties are not automatic. You must claim them correctly on your return.

Knowing this ahead of time helps avoid missed opportunities.

9. A Cross-Border Tax Advisor (Before You Need One)

Perhaps the most important item on this list isn’t a document—it’s expert guidance.

The U.S. tax system:

• Penalizes late or incorrect filings harshly (penalties for a single missing form can amount to tens of thousands of dollars)
• Requires proactive reporting
• Treats foreign assets with heightened scrutiny

Working with someone who understands both Australian and U.S. tax systems can save you time, money, and stress in your first year.

Final Thought

Your first U.S. tax season doesn’t start in April—it starts before you board the plane. A little preparation now can prevent expensive mistakes later and help you start your new chapter in the U.S. with confidence.

“All happy families are alike; each unhappy family is unhappy in its own way.”

Leo Tolstoy’s Anna Karenina (1878)

Anna felt trapped in her high society marriage in 19th-century Russia. The divorce was frowned upon by the Orthodox Church. Thus, she did not formally divorce Karenin and instead ran off with Vronsky. While most divorces nowadays are less dramatic, they are still unpleasant for both parties and quite complicated. International divorce adds more complications, confusion, and frustration since the divorce process is rarely “just family law.” A decree may be issued under Australian law and negotiated entirely in Australia, but U.S. tax outcomes for a U.S. citizen can still turn on U.S. rules—especially rules that hinge on status (married vs not married), tax residency (resident vs non-resident alien), and ownership/control of offshore accounts and structures.

The key difficulty is that cross-border divorce compresses multiple high-stakes determinations into one year:

• Your U.S. filing status may be determined by what is true on December 31, even if you separated long before that. 
• If your spouse is a non-resident alien for U.S. tax purposes, you generally cannot file a joint return unless a specific election applies. 
• “Divorce transfers are tax-free” is not always true in international divorces because the U.S. divorce-transfer nonrecognition rule generally does not apply when the recipient spouse is a non-resident alien. 
• Divorce often changes ownership and signatory authority over foreign accounts, which can change offshore reporting responsibilities, especially FBAR and Form 8938.

U.S. Citizens Living Abroad: The Baseline Is “Worldwide”

A persistent misconception in expat divorces is that living abroad changes who is a U.S. taxpayer. It does not. The IRS’s Internal Revenue Manual states plainly that U.S. citizens living or traveling outside the United States are generally required to file U.S. income tax returns and report worldwide income. 

That’s the baseline. Even if foreign tax credits, exclusions, or treaty positions reduce U.S. tax, the filing and reporting framework still exists, and divorce often changes what must be reported.

Your Spouse: “Resident Alien” vs “Non-Resident Alien” Drives Most Cross-Border Outcomes

For U.S. tax purposes, an “alien” is anyone who is not a U.S. citizen. IRS Publication 519 explains the core split: aliens are classified as resident aliens and non-resident aliens;

Resident Aliens – are generally taxed on worldwide income,

Non-Resident Aliens – are generally taxed only on U.S.-source income and certain income effectively connected with a U.S. trade or business. 

The IRS also summarizes the practical mechanics of classification: an alien is a resident alien if he or she meets the green card test or the substantial presence test, or makes certain elections (including an election under IRC §6013(g) or (h)). If the person does not meet those tests and does not elect, that person is a non-resident alien and must file Form 1040‑NR to report certain U.S. tax items.

In a U.S./Australia or any other foreign divorce where the non-U.S. spouse lives outside of the U.S. and does not meet U.S. residency requirements, the spouse is commonly treated as a non-resident alien for U.S. tax purposes. That single fact ripples into filing status, withholding, and property transfer consequences.

Filing Status: Why December 31 Controls Even If Your Divorce Is “Non-U.S.”

The year-end rule is statutory, not a “paperwork” detail.

U.S. tax law generally determines whether you are married as of the close of your taxable year. The joint return statute, IRC §6013(d), similarly measures marital status as of the close of the year for spouses with the same taxable year, and provides that individuals legally separated under a decree of divorce or separate maintenance are not considered married. 

Practical Meaning – A divorce finalized in early January can mean you were “married” for U.S. tax purposes for the entire prior year.

“Legally Separated” Is Meaningful In The U.S. Tax Sense

IRC §7703 states that an individual legally separated under a decree of divorce or separate maintenance is not considered married. That phrase matters because not all “separation” ideas used in foreign jurisdictions map neatly to U.S. divorce or separate maintenance decrees. When your divorce is governed by foreign law, you still need to identify whether you have a decree that the U.S. tax rules treat as ending “married” status.

Head Of Household: Possible, But Facts Matter

Many separated expat parents are interested in the Head of Household (HOH) status. IRC §7703(b) provides a “certain married individuals living apart” rule that allows a married person filing separately to be treated as not married if they maintain a household that is the principal place of abode of a qualifying child for more than half the year, provide over half the cost of maintaining the household, and the spouse is not a member of the household during the last six months of the year. 

In international divorces, HOH analysis becomes fact-intensive quickly:

• where the child actually lived,
• who paid household costs,
• whether the spouse was a member of the household during the last six months,
• and dependency entitlement mechanics.

So, while HOH can be a valuable filing status, in cross-border divorce, it should be treated as a fact pattern to prove, not a default assumption.

Married To A Non-Resident Alien Spouse: Why Married Filing Joint (MFJ) Is Often Blocked And How Elections Change The Landscape

The default rule: no joint return if either spouse is a non-resident alien.

IRC §6013(a)(1) provides a clear limitation: no joint return shall be made if either spouse at any time during the taxable year is a non-resident alien. However, non-resident aliens married to U.S. citizens or residents can choose to be treated as U.S. residents and file joint returns.

This is the first major “international divorce fork”:

• If the foreign spouse remains a non-resident alien and no election is made, you may be limited to separate filing (and the spouse may file Form 1040‑NR for U.S. income items). 
• If you want MFJ, you are typically talking about a statutory election regime.

The §6013(g) election (and related rule §6013(h)): MFJ becomes a choice, not a default.

IRC §6013(g) allows spouses to elect to treat a non-resident alien spouse as a U.S. resident for (1) income tax for the entire year, and (2) wage withholding for wages paid during the year.

Regulation §1.6013-6 provides a clear summary of who can elect.  The election is made by either the husband or the wife at year-end, when one spouse is a U.S. citizen or resident, and the other is a non-resident alien. Once an election is made, each spouse is treated as a U.S. resident for various Internal Revenue Code purposes and specific filing/administrative provisions for the entire year. 

The election is made by attaching a statement to a joint return for the first year; the statement must include identification (U.S. Social Security or taxpayer identification numbers) and be signed by both spouses. 

The election terminates if spouses are legally separate under a decree of divorce or separate maintenance; the regulation also provides timing for termination. 

Therefore, if you make the election, you and your spouse are treated as residents for income tax purposes for the entire year; neither spouse can claim under any treaty not to be a U.S. resident; both are taxed on worldwide income; you must file a joint return for the year you make the choice.

US Taxpayer Identification (ITIN) Mechanics

If the non-resident spouse does not have and is not eligible for a U.S. Social Security Number, he or she must apply for an ITIN. In a divorce year, this creates a practical timing issue: the ability to file as intended may depend on whether the spouse will cooperate in obtaining an ITIN.

Community Property Twist: Foreign Community Property Laws Can Matter (And The Election Can Switch Them Off)

International couples sometimes encounter community property concepts. IRC §879 addresses community income where one or both spouses are non-resident aliens and states that “community property laws” include those of a foreign country. It also provides that the §879 rules do not apply for any year in which a §6013(g) or (h) election is in effect. 

Even if Australian marital property isn’t “community property” in the U.S. sense, this section is a reminder that the Code sometimes explicitly contemplates foreign marital property regimes, and elections can change the default allocation framework.

Treaties And Dual Residents: When The Treaty Changes “How You Compute Tax”, But Not Necessarily Everything Else

Dual Resident Taxpayers: Treaty Tie-Breaker Can Require Form 1040-NR + Form 8833

If you are treated as a resident of a foreign country under a tax treaty, you are treated as a non-resident alien in figuring your U.S. income tax; for purposes other than figuring your tax, you will be treated as a U.S. resident. In a practical sense, it means that while you are not going to pay U.S. income tax on foreign source income, you will still need to report all non-US financial assets and file applicable international disclosure forms like 3520, 3520-A, 5471, 8865, etc.

Divorce Support And Cross-Border Cash Flows: Withholding-Agent Issues That Don’t Exist In Domestic Divorces

The cross-border “support” issue is often less about whether something is deductible (U.S. law changed in recent years for many divorces), and more about:

• recipient status (foreign or not),
• income sourcing, and
• withholding and reporting responsibilities.

Withholding Agent Concept (And Why Divorce Can Create One)

The IRS defines “withholding agent” broadly as any person required to withhold income tax on U.S.-source income received by a non-resident alien and others, and states that the withholding agent is responsible for submitting withholding information on Form 1042 and providing recipient information on Form 1042‑S. 

Many divorcing taxpayers do not realize they can become a “withholding agent” simply by agreeing to pay periodic amounts to a foreign recipient out of U.S.-source FDAP streams or other U.S.-source payments.

The non-resident alien withholding baseline and why it can matter in divorce.

Treasury regulations governing non-resident alien taxation explain that a non-resident alien not engaged in a U.S. trade or business is liable for a flat tax of 30% on certain U.S.-source amounts received during the year (subject to treaty limitation). IRS Publication 519 provides the same idea in plain language: dividends, for example, are generally taxed at 30% (or lower treaty) and are generally withheld at source; if not withheld correctly, a Form 1040‑NR may be required to claim refund or pay additional tax. 

Divorce is relevant because many settlements create:

• periodic payments,
• distributions from investment accounts,
• payments funded by dividends or interest,
• and third-party payments for the benefit of the foreign spouse.

These can create withholding and reporting tail obligations that need to be planned in advance, including documentation flow and timing.

For International Marital Gifting, There Are Two Different “Spouse” Regimes

Income tax regime governed by IRC 1041 and gift tax marital deduction under IRC 2523.

Marital deduction is disallowed for transfers to a spouse who is not a U.S. citizen at the time of the transfer. Instead, if the transfer otherwise qualifies (e.g., present interest), there is a special annual exclusion amount (inflation-adjusted). For the calendar year 2025, that amount is $190,000 ($194,000 for 2026). Citizenship drives your gift tax cap, but it does not magically convert a gift into a taxable sale or a basis step‑up.

Property Division: When “Divorce Transfers Are Tax-Free” Is False In International Divorces

The General Rule: IRC 1041 Nonrecognition For Spouse Or Incident-To-Divorce Transfers

IRC 1041(a) provides that no gain or loss is recognized on a transfer of property to a spouse or to a former spouse if the transfer is incident to divorce. Section 1041(b) provides carryover basis: the transferee generally takes the transferor’s adjusted basis.  A transfer is incident to divorce if it occurs within one year after the marriage ceases or is related to the cessation of the marriage. If our analysis stopped here, we would have a familiar US domestic non-recognition outcome.

The International Exception: IRC1041(d) When Spouse Is Non-Resident Alien

Section 1041(d) is explicit; Code section 1041(a) shall not apply if the spouse (or former spouse) receiving the transfer is a non-resident alien

This is the single most important property division issue in the U.S./foreign divorces involving a U.S. citizen spouse and a foreign spouse who remains a non-resident alien for U.S. tax purposes.

As a result, transferring appreciated property to a spouse who is a non-resident alien can be a taxable event for U.S. purposes (absent another nonrecognition provision).

Carryover basis still matters (even when  IRC 1041 does apply)

Even in cases where IRC 1041 applies (e.g., transfers between two U.S. people), the carryover basis rule means that the divorce settlement often shifts built-in gain. For portfolio-heavy couples, “equal value” does not mean “equal after-tax value.”

Transfers In Trust Where Liabilities Exceed Basis

Section 1041(e) provides that IRC 1041(a) does not apply to certain transfers in trust to the extent liabilities exceed basis.  For business-owner divorces involving trusts and leveraged assets, this provision can be relevant. Trust-based settlement structures should be reviewed not only for family-law goals but also for U.S. income tax consequences, including debt and basis mechanics.

Post-Divorce Compliance Reset: FBAR, Form 8938, And Foreign Trust Reporting

Divorce changes facts. Offshore reporting rules often attach to facts like ownership, signatory authority, beneficial interests, distributions and loans, and whether you are elected into broader residency treatment.

A useful approach is to treat post-divorce compliance as a “reset” exercise rather than a continuation of pre-divorce assumptions.

FBAR

A U.S. Treasury reporting requirement that can change with signatory authority.

Every U.S. citizen or resident alien with an interest in or signature authority over foreign financial accounts exceeding $10,000 in aggregate value at any time during the calendar year must report that relationship. The report is filed electronically on FinCEN Form 114 and is separate from the tax return; failure to file may result in civil and criminal penalties. 

Divorce relevance: even if the accounts didn’t change, divorce often changes who is a signer or owner, which can change reporting requirements in the divorce year.

Form 8938 (FATCA)

A broader “specified foreign financial assets” concept.

You may have to file Form 8938 if you are a resident alien for any part of the year, or a non-resident alien who makes an election to be treated as a resident to file a joint return (among others). 

Specified foreign financial assets include foreign financial accounts and, if held for investment, foreign stock and securities, interests in foreign entities, and financial instruments/contracts with non-U.S. issuers/counterparties. 

Penalties can apply for failure to file Form 8938 and for understatement of tax related to undisclosed assets. 

Divorce relevance: if you previously filed jointly and later file separately, or if you are considering a §6013 election in the divorce year, Form 8938 scope and thresholds can change. 

Foreign Trusts And Non-U.S. Trusts

Why do business-owner divorces require special attention?

Many U.S./Australia divorces involve family structures and entities that behave like trusts for Australian purposes or are classified as non-U.S. trusts under U.S. rules. Certain types of foreign accounts or entities are classified as non-U.S. trusts (an example could be certain superannuation accounts). If a U.S. citizen or resident is considered the beneficiary, trustee, or owner, certain information reporting forms may be required, with separate deadlines and penalties for failure to file. 

Form 3520 is filed yearly by an owner of a non-U.S. trust to report ownership, and also for certain contributions/loans to, distributions/loans from, or large gifts from non-U.S. persons/entities; generally filed by the due date (including extensions) of the individual’s return. 

Form 3520‑A is filed yearly by the trustee of a foreign trust with a U.S. owner and is generally due March 15 for a calendar-year trust; a six-month extension may be requested by March 15. 

Divorce Relevance – Divorce is often the first time a U.S. spouse sees trust deeds, trustee statements, trust distributions, or intercompany loans in one place. That is precisely the moment when a controlled “cleanup” plan should be considered if past years were inconsistent or incomplete.

A Practical Checklist Specific To U.S. Citizens Divorcing Foreign Spouses

Year-end marital status: determine what is true on December 31 for U.S. purposes. 

Spouse U.S. tax status: confirm whether the Australian spouse is a non-resident alien. 

MFJ election decision: if MFJ is desired, evaluate the §6013(g) election and its consequences (worldwide income inclusion, treaty limitations, ITIN, and termination timing). 

Divorce property transfers: identify any appreciated property being transferred to a spouse who remains a non-resident alien; §1041 nonrecognition may not apply.

Withholding/FDAP awareness: identify any U.S.-source income streams being paid to a foreign recipient and treat withholding/reporting as part of the settlement administration. 

Offshore reporting reset: rebuild the offshore asset/account/entity/trust inventory after separation and again after final orders; ensure ownership and signatories match what is reported.

International Divorce Is Manageable, But It Rewards Early, Structured Planning

If your divorce is revealing previously undisclosed foreign accounts, inconsistent prior-year offshore reporting, or trust/entity structures that were never fully integrated into U.S. filings, the most effective next step is often a structured offshore disclosure cleanup plan built around the divorce timeline—so ownership changes, trust reporting, FBAR/Form 8938 posture, and any required information returns can be corrected in a controlled, consistent way before asset division and post-divorce filing positions become fixed. 

A Practical Guide For Australians And Globally Mobile Founders

For Australians moving to the United States — as executives, investors, or globally mobile founders — the U.S. personal tax system can feel both familiar and foreign. The rules are extensive, the terminology takes getting used to, and the way deductions operate is fundamentally different from Australia’s.

Where Australia offers targeted deductions within a tightly defined framework, the U.S. system blends statute, history, case law, and political compromise. For internationally mobile taxpayers, that combination creates both unexpected pitfalls and valuable planning opportunities.

This article provides a clear guide to the most significant deductions available on a U.S. personal tax return, complete with examples that reflect the situations Australians commonly face.

1.  Above-The-Line Deductions — The Most Valuable Deductions You Can Claim Without Itemising

Above-the-line deductions reduce Adjusted Gross Income (AGI), which then determines eligibility for further deductions and credits. Reducing AGI is often the single most powerful tax optimisation strategy for globally mobile individuals.

Retirement Contributions: IRA, SEP IRA And Solo 401(k)

Contributions to traditional IRAs may be deductible depending on income and employer-plan participation. For self-employed founders operating in the U.S., SEP IRAs and Solo 401(k)s offer substantial deductible contributions.

Example:
Michael, an Australian executive earning USD 160,000 in the U.S., contributes to his employer’s 401(k). Because he is already covered by that plan, his IRA contribution is not deductible due to income limits.

However, if Michael were self-employed and earned the same amount, a SEP IRA could allow deductible contributions of tens of thousands of dollars.

Health Savings Accounts (HSAs)

Unique to the U.S., HSAs allow deductible contributions, tax-free earnings, and tax-free withdrawals for medical expenses. Australians often find HSAs to be one of the most generous structures in the U.S. system.

Example:
Sarah, an Australian relocating to California, switches to a qualifying high-deductible health plan and contributes USD 8,300 into an HSA for her family.

This contribution is fully deductible, grows tax-free, and withdrawals for medical expenses remain tax-free. No Australian equivalent exists.

Self-Employed Deductions

For entrepreneurs and consultants, these include:

• Self-employed health insurance
• Half of self-employment tax
• Qualified retirement plan contributions
• Certain business expenses

Example:
An Australian consultant billing USD 220,000 through a U.S. LLC deducts:

• USD 9,000 in self-employed health insurance
• USD 8,000+ for half of self-employment tax
• USD 20,000–40,000 in retirement contributions

These deductions significantly reduce taxable income.

2. Standard Deduction vs. Itemised Deductions — The Annual Decision

Each taxpayer chooses either:

• The Standard Deduction, or
• Itemised Deductions, if they exceed the standard deduction.

Standard Deduction Example:

David and Emma, an Australian couple living in Texas, have:

• USD 6,500 property tax
• USD 3,000 charitable gifts

Total: USD 9,500

The standard deduction is much higher, so they do not itemise.

Itemised Deduction Example:

An Australian family living in New York has:

• USD 23,000 state income tax
• USD 14,000 property tax (but SALT capped at USD 10,000)
• USD 18,000 mortgage interest
• USD 12,000 charitable gifts

Their itemised deductions total USD 40,000, higher than the standard deduction, so they itemise.

3. State And Local Tax Deduction (SALT) — Now Capped At USD 10,000

Before 2017, many high-income earners benefited from large SALT deductions. Today, the deduction for:

• U.S. State Income Tax
• U.S. Local Taxes
• U.S. Property Taxes

Is capped at USD 10,000 per return.

Example:
Grace, an Australian senior executive in San Francisco, pays:

• USD 45,000 state income tax
• USD 15,000 property tax

Despite paying over USD 60,000, she may deduct only USD 10,000.

Important:
Foreign taxes do not count toward SALT. They belong to the foreign tax credit calculation, not deductions.

4. Mortgage Interest Deduction — Still Valuable, But Limited

Interest paid on qualifying mortgages for U.S. residences is deductible, subject to limits.

• Up to USD 750,000 of acquisition debt (for loans after 2017)
• Older mortgages may retain the USD 1 million limit

Example:
A couple buys a Los Angeles home with a USD 900,000 mortgage taken in 2021. Only interest on the first USD 750,000 is deductible.

Foreign Mortgages – Interest may be deductible if the loan is secured by the property, but foreign property taxes fall under the USD 10,000 SALT cap, reducing overall benefit.

5. Charitable Contributions — A Generous And Flexible Deduction

Charitable gifts remain a highly effective deduction for high-income taxpayers.

Key Points

• Must be made to U.S. qualified charities
• Cash gifts deductible up to 60% of AGI
• Appreciated assets deductible up to 30% of AGI

Example: Cash Donation

A Sydney entrepreneur working in the U.S. donates USD 50,000 to a U.S. 501(c)(3). Fully deductible.

Example: Appreciated Stock Donation

If the founder donates USD 50,000 in stock purchased for USD 10,000:

• USD 50,000 deduction
• No capital gains tax on the USD 40,000 appreciation

Foreign Charity Contributions – Donations to Australian charities are generally not deductible unless channelled through a U.S.-recognised “friends of” organisation.

6. Medical And Dental Expense Deductions — Only For Major Costs

Medical expenses are deductible only to the extent they exceed 7.5% of AGI.

Example:

A family with AGI of USD 200,000 incurs USD 25,000 in medical expenses.
Deductible portion = 25,000 – (7.5% × 200,000)
= 25,000 – 15,000
= USD 10,000

For high earners, only significant medical events typically produce a deduction.

7. Investment-Related Deductions

Investment Interest

Interest on margin loans is deductible up to net investment income.

Example:
Liam pays USD 12,000 interest on a margin loan and has USD 18,000 in investment income.
He may deduct the full USD 12,000.

Capital Losses

Capital losses offset capital gains and up to USD 3,000 of ordinary income.
Excess losses carry forward indefinitely.

8. The Qualified Business Income (QBI) Deduction — A Major Benefit For Eligible Founders

Eligible owners of U.S. pass-through businesses (LLCs, partnerships, S corps) may deduct up to 20% of qualified business income.

Example:

Tom runs a logistics LLC and earns USD 300,000.
He may claim a USD 60,000 QBI deduction, subject to wage and property basis tests.

Specified Service Businesses – Consulting, accounting, financial services, and similar professions face phase-out limits.

Example:
Lisa, an Australian consultant earning USD 220,000, is within the phase-out range and still receives a partial QBI deduction.

9. International Mobility Considerations — Where Australians Often Get Caught

Superannuation Contributions 

Australian super contributions are not deductible for U.S. tax purposes.

Foreign Property Tax

Property tax on homes in London, Singapore or Sydney does not escape the SALT cap.
Only USD 10,000 total may be deducted.

PFIC And Foreign Trust Advisory Fees

These are not deductible, as miscellaneous itemised deductions remain suspended until at least 2026.

Conclusion

The U.S. deduction framework is powerful but complex. For Australians and other globally mobile founders, the goal is to understand which deductions reduce AGI, which are capped, and which are unavailable for foreign assets and pensions.

Used properly, these deductions can significantly reduce U.S. tax liability while maintaining full cross-border compliance — a balance every global individual needs.

The “One Big Beautiful Bill Act” (OBBBA), signed into law on July 4, 2025, is the most sweeping U.S. tax overhaul since 2017. 

While it extends many Tax Cuts, it also introduces new provisions that affect inbound and outbound expatriates. 

Below we summarize key changes and considerations, including new deductions, changes to foreign earned income provisions, reporting obligations, and residency rules.

New Deductions Or Changes For Foreign Nationals Moving To The U.S. (Inbound Expats)

Moving Expense Deduction

Unfortunately for new U.S. residents, OBBBA permanently disallows the moving expense deduction (and the exclusion for employer-paid moving reimbursements) for non-military taxpayers. 

This means foreign nationals relocating for work can no longer deduct their moving costs (which had been suspended under TCJA and now will not return). 

In practice, inbound employees should negotiate tax gross-ups on moving packages, since moving benefits are fully taxable. Only active-duty military (and certain intelligence community members) remain eligible for the moving expense deduction.

Standard Deduction And Dual-Status Issues

OBBBA locked in a much larger standard deduction (now $15,750 single / $31,500 joint for 2025 and indexed) as a permanent feature. 

However, non-resident aliens still cannot use the standard deduction. 

A foreign national who arrives mid-year will file as a dual-status alien, generally paying U.S. tax only on U.S.-source income for the non-resident portion of the year, but with no standard deduction for that part. 

If they qualify, they might elect to be treated as U.S. resident for the full year (under IRC §7701(b)(4)) to claim the standard deduction – but that subjects their full-year worldwide income to U.S. tax. 

These first-year elections rules are unchanged under OBBBA, so careful timing and modeling is needed to decide the optimal filing status.

Tax Treaty Provisions

Inbound taxpayers should also review tax treaty provisions. If a treaty tie-breaker would treat them as resident of their home country for part of the year, they may use that (since they are not U.S. citizens, the treaty saving clause doesn’t bar it), though doing so can be complex. 

OBBBA did not create any new inbound tax exemptions or basis step-ups – meaning new residents receive no automatic step-up in basis for assets they owned before moving. 

Planning Tip. For inbound individuals – consider disposing of highly appreciated foreign assets before becoming a U.S. resident, or to be prepared for U.S. tax on the full gain if sold post-arrival (since U.S. basis will generally be original cost).

“Remittance Tax” On Outbound Transfers

A novel provision imposes a 1% excise tax on certain money transfers from the U.S. to foreign recipients (effective for transfers after 2025). 

This is aimed at cash remittances – for example, an expat worker in the U.S. sending cash to family overseas via a money transfer service would pay a 1% tax, collected by the remittance provider. 

However, transfers from U.S. bank accounts or by U.S. debit/credit card are exempt, so immigrants and foreign workers in the U.S. can plan around this by using bank-to-bank transfers instead of cash remittance services to avoid the fee. 

While not a “deduction,” this new tax is a consideration for inbound expats who regularly send funds abroad.

Other Inbound Notes

OBBBA’s major individual tax cuts (rate reductions, bigger child credits, etc.) generally benefit U.S. residents and citizens across the board, including recent arrivals. 

For example, the Child Tax Credit (CTC) was increased to $2,500 per child (from $2,000). 

However, the act tightened ID requirements. Now at least one parent filing jointly must have an SSN to claim the refundable portion of the CTC. 

This is actually easier than the initially proposed rule that both parents have SSNs – a relief for mixed-nationality couples. 

Children still need SSNs (ITINs don’t qualify) as before. Inbound expats should obtain SSNs for themselves and their U.S.-citizen children as soon as possible to maximize credits.

Finally, note that state tax obligations might still follow a new arrival (if they establish residency in a U.S. state). 

OBBBA temporarily raised the federal state and local tax (SALT) deduction cap from $10k to $40k (through 2029, with AGI phase-outs). This provides some relief if a new resident pays significant state/local taxes. 

However, non-residents and dual-status filers generally cannot benefit from the standard deduction or SALT deduction unless they elect full-year residency, so the practical benefit is limited to those fully subject to U.S. tax.

Changes For Americans Moving Or Living Abroad (Outbound Expats)

Foreign Earned Income Exclusion (FEIE) And Housing Exclusion

The FEIE – a key tax break for U.S. expats – continues unchanged in mechanism, with annual inflation adjustments. 

For 2025, the FEIE cap rises to $130,000 per qualifying individual (up from $126,500 in 2024). 

Married couples who both qualify can exclude up to $260,000 of foreign wage or self-employment income. 

The foreign housing exclusion/deduction was also adjusted. The base housing amount is $20,800 and the general housing cost limit about $39,000 for 2025 (with higher caps for certain high-cost cities abroad). 

Bottom line. Americans abroad can exclude a bit more income due to inflation indexing; OBBBA did not restrict these exclusions. 

Expats should continue to track their bona fide residence or physical presence test status carefully each year to maintain FEIE eligibility – the law did not change the qualification tests (12+ months abroad or 330-day rule).

Foreign Tax Credit (FTC) And Tax Treaties

One initial concern was a provision known as Section 899 (nicknamed the “revenge tax”) that would have penalized Americans in countries with “unfair” taxes (initially aimed at nations with digital services taxes, etc.), effectively limiting the use of foreign tax credits in those cases. 

Good news. After international pushback, Section 899 was removed from the final bill. Thus, U.S. expats retain full access to the FTC* to offset foreign income taxes paid, and no new surtax will apply on income from any particular country. 

The FTC system remains as before, so Americans abroad can generally credit foreign taxes dollar-for-dollar against U.S. tax on the same income (up to limits), helping avoid double taxation in high-tax countries. 

In fact, one tweak in OBBBA actually improves FTC usage for some expats. The act reduces the “deemed paid” foreign tax credit haircut from 20% to 10%. 

This mostly affects those with GILTI (Global Intangible Low-Taxed Income) from controlled foreign corporations – now renamed “Net CFC Tested Income” – where previously only 80% of foreign taxes were creditable. Going forward, 90% of foreign taxes on GILTI/NCTI will be creditable. 

For an entrepreneur abroad who owns a foreign corporation, this could modestly lower U.S. tax on high-taxed foreign earnings (since more of the foreign tax can offset U.S. tax). 

Other international business provisions – like making the CFC look-through rule permanent and restoring certain attribution rules – may ease tax burdens on expats with complex structures.

No Switch To Pure Residency-Based Taxation (Yet)

Despite hopes in the expat community, OBBBA did not end citizenship-based taxation. 

U.S. citizens and green card holders are still taxed on worldwide income regardless of residence. President Trump had promised to “end double taxation” on Americans abroad and supported a residence-based taxation (RBT) proposal, but that was not included in this bill. 

A separate bill (the LaHood RBT Act) was introduced and may be debated later, but as of now nothing has changed: Americans abroad must continue filing annual U.S. tax returns, FBARs, etc., on their worldwide income and assets. 

The FEIE and FTC remain the primary tools to mitigate double taxation. 

Tax treaties also remain in effect, but remember the “saving clause” in U.S. treaties generally prevents U.S. citizens from using treaty residency tie-breakers to avoid U.S. tax. 

OBBBA did not alter any treaty provisions or the saving clause. (In practical terms, a U.S. citizen cannot use a tax treaty to claim non-residency and escape U.S. tax – you’d have to expatriate to do that. For long-term green card holders, using a treaty to be treated as a non-resident can trigger the expatriation rules – see below.)

Foreign Housing, Meals, And Other Deductions

Aside from the FEIE/housing exclusion adjustments noted, OBBBA didn’t take away expat-specific deductions. 

For instance, the housing exclusion formula under §911 remains in place. 

Some expats who work for foreign employers may have access to tax-equalization or housing reimbursement plans – those too are unchanged by the law (though employers might need to recalibrate tax projections given other changes). 

One Item To Note. If an outbound U.S. employee was hoping the moving expense deduction might be restored for their move abroad, that is not the case – as mentioned, moving expense write-offs remain disallowed for civilians. Employers should gross-up any moving allowances for U.S. employees relocating overseas, since those payments will be taxable compensation to the employee.

Estate And Gift Tax Relief

Many Americans abroad worry about U.S. estate tax on worldwide assets. 

OBBBA increased the unified estate/gift tax exclusion to $15 million per individual (up from ~$14M). This high exemption (available through 2030) greatly reduces the number of expats subject to U.S. estate tax. 

It also presents a planning opportunity. Wealthy expats considering renouncing U.S. citizenship can use the large gift exemption now to shed assets and potentially get their net worth below the $2 million “covered expatriate” threshold. 

By utilizing the $15M exemption to gift assets tax-free now, an expat could avoid the exit tax entirely upon expatriation. (For example, an American abroad with $10M net worth can gift, say, $5M to a trust for their children – using up part of the $15M exemption – and thereafter be under $2M net worth, avoiding covered expatriate status if they renounce.) 

Caution. The $15M exemption isn’t guaranteed forever; it’s set to revert (likely to ~$6M) in 2031 unless extended. 

Thus, expats with estate tax concerns might act sooner rather than later. OBBBA did not otherwise change the exit tax regime under §877A – any U.S. citizen or long-term green card holder who expatriates with net worth above $2M (or failing other tests) still faces the mark-to-market exit tax. 

Proper planning (now aided by the high exemption) remains crucial.

New Reporting Burdens And Compliance Changes (And Planning Responses)

A major theme of OBBBA is increased tax compliance and enforcement, including for international filers. 

Key changes that inbound/outbound taxpayers should note:

• Expanded Foreign Asset Reporting – The law authorizes lower thresholds for FATCA Form 8938 and FBAR reporting and even for foreign gift reporting. While the IRS hasn’t yet announced new limits, OBBBA gives Treasury the green light to “lower the bar” for reporting foreign accounts and assets. Currently, U.S. expats must file an FBAR (FinCEN 114) if aggregate foreign accounts > $10,000, and Form 8938 if foreign financial assets > $200,000 (single) at year-end. These thresholds could drop, meaning more expats may have to file these forms going forward.
  
  Foreign gifts/inheritances – Today, a U.S. person must file Form 3520 if they receive > $100,000 from a foreign individual or > ~$18,000 from a foreign corporation/trust.
  
  OBBBA significantly lowers these thresholds (exact new amounts TBD). 
  
  This means more expats will trigger Form 3520 filings for even modest gifts or bequests from abroad. 
  
  While such foreign gifts remain non-taxable, the penalty for failing to report can be 25% of the gift – so this is a serious compliance point. International tax advisors should flag any inbound gift to a client, no matter how small, to see if it now requires a report.
  
• Accelerated Deadlines & Shorter Extensions – The Act directs alignment of some expat filing deadlines closer to domestic deadlines. U.S. taxpayers abroad have traditionally enjoyed an automatic 2-month filing extension to June 15, with further extensions to October (and even December in some cases). OBBBA shortens this window. Expect tighter due dates for international filings, possibly ending the automatic June 15 extension. 
  
  For example, the due date for filing a Form 3520 or Form 5471 might be pulled forward. We await IRS guidance, but practitioners should prepare expats to file earlier and not rely on lengthy extensions. The era of casually filing an expat return in October might be over – timely attention to April 15 (or a nearer date) is advised once rules are clarified.
  
• Stiffer Penalties and Enforcement – Congress has hiked penalties for international non-compliance across the board. Failure to file an FBAR, Form 8938, 5471, 3520, etc., will carry even heavier fines than before, and the IRS is mandated to step up international enforcement (with funding previously allocated to IRS enforcement largely preserved). Also, expect greater data sharing between IRS and foreign tax authorities. 
  
  For expats, this means less margin for error – every foreign account, asset, and entity must be reported meticulously. 
  
  It’s prudent to perform a “compliance check-up”. Ensure all past FBARs and international forms have been filed (the Streamlined Procedures remain an option to clean up past omissions, ideally before penalties hit). 
  
  OBBBA’s message is clear: the compliance net is tightening.
  
• Small Business and Investment Tweaks – Expat entrepreneurs will face some new wrinkles. OBBBA instructs Treasury to limit Section 179 expensing and certain small-business deductions on foreign assets/businesses. 
  
  In practice, if an American abroad owns a foreign business or rental property, they may not be able to immediately deduct equipment purchases (§179) placed in service overseas as liberally as a domestic business. 
  
  There may also be new anti-abuse rules for expats claiming business losses or expenses from abroad. 
  
  Details will emerge in IRS guidance, but tax professionals should be prepared to recalculate assignment cost projections for employers and reassess expat entrepreneurs’ estimated taxes. 
  
  On the investment side, note that no relief was provided from the PFIC rules or the transition tax/GILTI regime that hit many expats after 2017 – those remain in effect. (If anything, as noted, GILTI was slightly modified to be more inclusionary by reducing the §250 deduction to 40%, but high foreign tax credits mitigate its impact for many.) 
  
  Expats should continue to avoid foreign mutual funds (PFICs) or be ready to file Form 8621 annually.

Planning Opportunities

Despite increased burdens, OBBBA opens some planning avenues:

• Use of the Higher FEIE and Credits – With a ~$130k exclusion, expats on the margin might newly avoid all U.S. tax by ensuring salary splits or housing allowances that maximize use of the FEIE + housing exclusion. Also, the slightly larger Child Tax Credit can mean bigger refunds for those with qualifying kids (make sure to claim the Additional CTC if eligible).
• Estate/Gift and Expatriation Planning – As discussed, the $15M lifetime exclusion offers a window for high-net-worth expats to reorganize wealth (gifts, trust funding, etc.) while U.S. estate tax is minimal. It can facilitate an exit strategy or simply provide peace of mind that one’s estate won’t be taxed absent very large assets.
• State Tax Considerations – Expats retaining state residency (or planning a move abroad mid-year) might benefit from the temporary SALT deduction increase if they itemize. For example, an expat who sells a U.S. home or has high state tax in the year of departure can potentially deduct up to $40k of it federally now – factor this into timing (maybe accelerate income/transactions into 2025-2029 to utilize the higher cap).
• Remittance Tax Avoidance – Inbound foreign workers should shift from cash remittances to bank transfers, as noted, to legally avoid the 1% excise.

In short, global tax planning is more critical than ever. 

Expats should coordinate U.S. and foreign tax strategies. For instance, a reduction in U.S. tax by FEIE could expose them to unused foreign tax credits (since you can’t claim credit on excluded income), so one might choose the FTC over FEIE in certain scenarios to maximize overall benefit. Each expat’s situation must be modeled under the new rules to uncover the best approach.

Residency Tie-Breakers, Dual-Status And First/Last-Year Residency Cases

OBBBA did not change the fundamental residency rules for tax purposes – but it adds context:

• Dual-Status Taxpayers – Individuals who are U.S. resident for part of the year and non-resident for part (e.g. the year of arrival or departure) will still file split-year returns as before. One caveat. Because the standard deduction is now permanently high and still unavailable to non-residents, dual-status filers get no standard deduction (and no personal exemption, as exemptions remain $0) for the non-resident portion. 
  
  This can result in higher taxable income in a split year. 
  
  Strategies remain the same – e.g., if arriving late in the year, consider electing to be treated as a full-year resident (if eligible under the first-year election rules) to claim the full standard deduction and credits, especially if foreign income for the pre-arrival part was low or already taxed abroad. 
  
  Conversely, if departing mid-year, one typically does not want to be taxed as a U.S. resident for the full calendar year. In those cases, use the “last-year” residency termination rules (IRC §7701(b)(2)(A)(iii) and (B)) by showing a closer connection to the new country and limited U.S. presence after departure. 
  
  OBBBA introduced no new relief or complexity in these calculations – it’s status quo. 
  
  However, watch the new accelerated filing deadlines. A dual-status taxpayer can’t procrastinate filing until October; if extension periods are reduced, they may need to file by spring with all necessary information on worldwide income ready. 
  
  Early coordination with foreign employers for income statements is advised.

• Tax Treaty Tie-Breakers – Many U.S. tax treaties have residency “tie-breaker” provisions that determine a single country of residence when both countries claim someone as a resident in a given year. 
  
  As noted, U.S. citizens cannot fully escape U.S. taxation via treaty due to the saving clause (the U.S. reserves the right to tax its citizens as if the treaty didn’t exist). 
  
  OBBBA did not amend any treaties or the saving clause. For non-citizens, such as a foreign national who becomes a U.S. resident but remains a tax resident of their home country, the treaty tie-breaker could be invoked to treat them as non-resident in one of the countries. 
  
  That process remains the same – though one should be mindful – if a long-term green card holder uses a treaty to be treated as non-resident of the U.S., that action can be considered a form of expatriation (essentially a surrender of their green card for tax purposes) potentially subjecting them to the exit tax under §877A. 
  
  OBBBA did not change this anti-treaty-shopping rule for long-term residents. 
  
  Thus, dual-status and treaty positions should be taken with caution and full disclosure (Form 8833 is required for treaty-based return positions).
  
• Increased Scrutiny – While the rules haven’t changed, the enforcement environment has. The law’s new reporting and documentation demands could indirectly affect residency determinations. 
  
  For example, more aggressive information reporting might flag an individual who claims to be a non-resident via a treaty tie-breaker but still has significant U.S. indicia. 
  
  In practice, an American abroad who asserts treaty benefits (say, to exempt foreign pension income under a treaty article) might face more IRS questions under the new regime. 
  
  Treaty-based positions should be thoroughly supported by contemporaneous evidence (residency certificates, proof of foreign tax paid, etc.). 
  
  Likewise, first-year and last-year residency cases may see heightened IRS scrutiny – e.g., if someone claims to have left the U.S. for good in June, the IRS may more often request proof of foreign residence for the remainder of the year. It’s advisable to document travel dates and foreign ties more rigorously in anticipation of this stricter oversight.

Bottom line. The residency definitions (substantial presence test, green card test, etc.) are unchanged – no new “residency tie-breaker certificate” or election was created in OBBBA (the mooted RBT proposal would have allowed citizens to elect non-resident status, but it’s not law). 

So the familiar complexities of dual-status returns and treaty tie-breakers remain. 

The difference post-OBBBA is a less forgiving compliance atmosphere. 

Entry and exit dates should be carefully planned, to maximize the use of any available exclusions/credits in split years, and ensure all required statements (e.g., dual-status statement, treaty disclosure) are properly attached to returns. 

Given the new law’s emphasis on enforcement, taking meticulous care with these cases will be critical.

Conclusion

The One Big Beautiful Bill Act of 2025 brings a mix of tax cuts, new rules, and tightened compliance that expats must navigate. 

For inbound expats, there’s relief in the form of permanent lower tax rates and higher credits, but also the loss of any moving expense offset and a new remittance tax to consider. 

For outbound Americans, the status quo of worldwide taxation continues – mitigated by an even larger FEIE and FTC preservation – but accompanied by more reporting obligations and potential penalties. 

Notably, the “worst-case” provisions feared by expats (like the Section 899 FTC surtax) were averted, making this law, in some ways, less punitive than expected. 

In fact, some experts call it expat-friendly due to the higher exclusions and the groundwork laid for future residence-based reform.

Still, the administrative burden on expats will rise. More forms (FBAR, FATCA, 3520) at lower thresholds, stricter timelines, and vigorous enforcement mean taxpayers must be ever diligent. 

There are also subtle planning points – from exploiting the temporarily generous estate exclusion, to adjusting tax equalization policies for employers, to revisiting whether FEIE or FTC yields a better outcome under the new rates. 

Each expat’s scenario will be unique under OBBBA, so personalized analysis is key.

IRS/Treasury Guidance. As of mid-2025, the IRS has begun issuing guidance on implementing OBBBA’s provisions. 

For example, guidance was promised on the new tip and overtime deductions (with transition relief for 2025 reporting), and we anticipate further instructions on international provisions (e.g. how to apply the new excise tax or any changes in reporting thresholds).

In summary, expat taxation in the post-OBBBA era will require careful attention but also presents new opportunities. 

By understanding the law’s changes – higher deductions and credits, preserved exclusions, and new compliance rules – inbound and outbound taxpayers alike can minimize their tax liability while staying fully compliant with both U.S. and foreign laws. 

The 2025 tax year will be a test run for many of these changes, so proactive planning in late 2025 and early 2026 will be essential. 

With thoughtful planning, Americans abroad and foreign nationals in the U.S. can navigate the One Big Beautiful Bill’s provisions to their advantage, or at least avoid its pitfalls, and move forward with greater confidence in their tax positions.