It is no secret that the U.S. tax code is complicated. For foreign persons, compliance with U.S. tax laws is particularly onerous, especially when considering that different rules apply for income and estate tax purposes and neither depend on an individual’s immigration status.
For income tax purposes, the U.S. presumes foreign persons to be nonresident aliens (NRAs) who must pay taxes only on income they derive from U.S. sources. Once NRAs apply for green cards or spend a specific and substantial number of days in the U.S., they are considered resident aliens (RAs) who, like U.S. citizens, must pay U.S. income tax on their worldwide income.
In contrast, foreign persons’ exposure to U.S. gift and estate tax depends on their “domicile” at the time of death, or the country they call home. Unlike the facts-based tests for determining income tax residency, U.S. domicile considers the more esoteric evidence of a person’s “intent” to remain in the country based on such factors as the location of a primary residence, business or personal belongings. Nonresident domiciliaries are subject to U.S. gift and estate tax only on assets that are situated in the U.S. at the time of death, whereas U.S. resident domiciliaries must pay estate and transfer taxes of their worldwide assets.
U.S. domiciled residents who pass away are required to file U.S. estate tax returns only when the fair market value of their worldwide assets at the time of death exceed the individual estate tax unified credit exemption, which is $11.58 million in 2020. Married couples filing joint tax returns in 2020 can shield up to $23.6 million from federal estate taxes. It is critical for foreign persons to recognize that this generous estate tax exemption is scheduled to expire in 2026, when it is set to revert back to its 2017 level of $5.49 million for individual taxpayers. Moreover, these thresholds many change even sooner depending on the results of the 2020 presidential elections.
When a nonresident U.S. domiciliary passes away in 2020, his or her estate must file a U.S. estate tax return if the fair market value of the decedent’s U.S.-situated assets at death exceeds $60,000. Estate taxes are due on U.S. situated assets that include tangible personal property as well as interest in and holdings of U.S. real estate and securities of U.S. companies. Excluded from estate tax are investments that generate portfolio interest, bank accounts that are not connected with a U.S. trade or business, and insurance proceeds.
Foreign persons who have a physical presence in the U.S. or who hold interest in or title to assets situated in the country must work with experienced financial advisors and tax accountants before stepping foot on U.S. soil in order to mitigate unnecessary exposure to income and estate taxes both in their home country and the U.S.
About the Author: Melvin Perez, CFP®, is a financial planner with Provenance Wealth Advisors (PWA), an Independent Registered Investment advisor affiliated with Berkowitz Pollack Brant Advisors + CPAs and a registered representative with Raymond James Financial Services. He can be reached at the firm’s Miami office at (800) 737-8804 or at firstname.lastname@example.org.
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Melvin Perez, CFP® is a registered representative of and offers securities through Raymond James Financial Services, Inc., Member FINRA/SIPC.
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* Certified Financial Planner Board of Standards Inc. owns the certification marks CFP®, CERTIFIED FINANCIAL PLANNER™ and federally registered CFP (with flame design) in the U.S., which it awards to individuals who successfully complete CFP Board’s initial and ongoing certification requirements.