Who needs to file Form 1040NR – Nonresident Alien Tax Return

Nov 3, 2021

It’s crucial for nonresident aliens to understand U.S. tax obligations, which come along with “U.S.-sourced income”: investments or employment in the U.S, and when they have an obligation to file Form 1040NR. As many nonresidents aren’t familiar with the U.S. tax system, they fail to file a tax return. It may lead to a variety of consequences. But on a positive note, you could receive a refund if you file a tax return on time. What if you are a U.S. citizen or Green Card holder with U.S. investment but ready to give up your citizenship/green card? In case you consider going this route, you need to be aware of your tax obligations changes.

Do you want to know more about U.S. taxes? Check out our free resources here.

Who should file form 1040NR and who is a Non-resident Alien?

First, let’s determine who is a nonresident alien. The IRS considers anyone who is not a U.S. citizen, Green Card holder, or met the substantial presence test but has U.S. tax filing obligation to be a nonresident alien. For example, you have income from the US but you do not meet the substantial presence test. Or you are engaged in a trade or business in the US and you are a nonresident alien. It doesn’t matter if the business activities generated any income, or if it’s exempt under tax treaty from US tax.

There is no minimum income threshold to file 1040NR Form as a non-resident alien. You should only report your U.S. sourced income on this form. However, foreigners investing in the US should first determine if their U.S. visits make them U.S. residents for tax purposes. In such cases, you must report your worldwide income.

1040NR Fact #1: Filing 1040NR Form is easier than it seems to be. While many nonresident aliens suppose they don’t owe any tax, they are robbing themselves of a possible refund. It’s very common that they withhold more from your paycheck. So you can get this money back!

Some individuals must file both Form 1040 and Form 1040NR. It usually applies to expatriates who should file a dual-status return. Following the laws, you are U.S. citizen from January 1st until the day of expatriation. For this period you will need to file Form 1040 and report your worldwide income. After your expatriation, you will need to file a non-resident alien tax return to cover your U.S. sourced income. On this return, you cover the period from the date of your expatriation to Dec 31st of the same year.

Am I a Non-resident?

You can use two different tests to determine if you are a non-resident and required to file Form 1040NR. The Green Card Test and The Substantial Presence Test. While the Green Card test is simple, meaning you either have it or not, the latter one is slightly more complicated.

The substantial presence test is more complex:

  1. You were physically present in the US for at least 31 days during 2021, and 183 testing days from 2018 to 2021.
  2. To satisfy the 183-day requirement, you need to count all of the days you were present in the US in the last 3 years. You also need to count the total number of days you spent in the US during the current year. Then add it to 1/3rd of the total number of days you spent last year and then add 1/6th of the total number of days spent in the United States 2 years ago.
  3. For the purpose of this test, The US includes all 50 States and the District of Columbia including – territorial waters,  which are defined as any “seabed or subsoil of those submarine areas that are adjacent to U.S. territorial waters and over which the United States has exclusive rights under international law to explore and exploit natural resources.”

If you’re a nonresident alien, it can be difficult to know if you’re required to file taxes, and if so, how to start the process. You’ll need to file a Nonresident Alien Tax Return to ensure you pay the required taxes based on your earnings. Obtaining assistance from professionals can also expedite the process, guiding you to the right documentation as well as reducing the risk of error affecting your costs.

Who is a Nonresident Alien?

A nonresident alien is anyone who is not a U.S. citizen or someone who holds a green card. You may earn an income while living in the U.S. but don’t meet the substantial presence test. You may also operate or be engaged in a business in the country but are not a legal citizen.

There are two different tests that can be taken to determine if you’re currently a non-resident in the U.S. The Substantial Presence Test and The Green Card Test are available to determine your status, which is necessary to move forward with filing taxes correctly and avoiding potential mistakes. The Substantial Presence Test is known to be more lengthy and complex but will give you the answers you’re looking for before filing a nonresident tax return.

If you’re struggling, 1040 Abroad can make it easier to navigate the complexities that come with filing a nonresident tax return to help you avoid penalties and fines. Similarly, we’re able to assist you in completing and submitting a form 1040NR to avoid getting robbed of a tax refund that you deserve. Our tax experts will even tell you if you’re required to submit both a Form 1040 and Form 1040NR, depending on your situation.

1040NR Fact #2: You may fall into a category of exempt individuals. Those are foreign-government related individuals, who are present in the US temporarily. Or you are a teacher with a J or Q visa. Elsewise, you can be a foreign student or professional athlete, These categories do not need to file a nonresident tax return. More specifically, the days spent in the U.S. under these visa categories are excluded from the computation when computing the substantial presence test.

What are some other exemptions to this Substantial Presence Test?

There are exemptions when you do not count the days of being in the US. For example, the first one is when you are in transit between two places outside the US and you are in the US for less than 24 hours. Also if you commute to work in the US from Canada or Mexico, where you reside. That should be on more than 75% of the workdays during your working period. In such a case, you don’t count the days you commute. Another exemption is when you couldn’t leave the US because of a medical condition that happened when you were in the country.

1040NR Fact #3: You are exempted if you are in the US as a crew member of a foreign vessel and you are engaged in transportation between the United States and a foreign country.

1040NR Fact  #4: If you failed to meet the Substantial Presence Test, you can be treated as a nonresident alien for tax purposes. To do so, you need to satisfy 3 criteria: 1) maintain a “tax home” in a foreign country; 2) have a closer connection to that country than to the US; 3) spend less than 183 days in the US during the current calendar year.

There are cases when a tax treaty between the US and foreign countries has special rules to determine residency for tax purposes. What happens if you changed your status during the year from resident to nonresident (or vice versa)?

Usually, you will have a dual-status for that year. And it means you have two different periods when different tax law provisions will apply to each period. If you want to claim the above-mentioned exceptions, then you have to file different forms and attach them to a Form 1040NR. So for tax treaty relief, you’d file Form 8833. And for the closer connection test, it is Form 8840.

Related: Nonresident Alien vs. Resident Alien: Understanding the Difference

When nonresident aliens are taxed in the U.S.?

Filing Form 1040NR-EZ is necessary when you are a nonresident alien and have the U.S. sourced income on which tax wasn’t paid fully. U.S. source income includes: 1) wages, if you have hourly pay as a full or part-time employee; 2) salaries, you get a fixed salary each pay period; 3) tips if you receive tips for any type of work; 4) refunds of state and local income taxes; 5) taxable scholarships and fellowships grants.

Generally speaking, U.S. taxes foreign people, including non-resident aliens, in a different manner than to U.S. citizens or resident aliens. Foreigners are subject to U.S. taxes if they have income, which includes passive-type items like interest, dividends, royalties, and rent. The U.S. payer has a primary responsibility to withhold 30% on a gross basis with no offsetting deductions and report it to the IRS.

Nonresident aliens earning effectively connected income with a trade or business in the U.S. have graduated tax rates on a net basis. It means available deductions reduce your income. A foreigner’s U.S. source net capital gains are not subject to U.S. tax. However, it will be taxed if the alien spent at least 183 days in the U.S. during the year.

Speaking of available deductions for nonresident aliens, it’s worth noting that you can deduct certain itemized deductions. It is allowed when you receive income effectively connected with your U.S. trade or business. You cannot include deductions and/or losses that relate to exempt income or income that is not connected with your U.S. business or trade.

Can a US citizen file Form 1040NR?

No, only Nonresident Aliens must file Form 1040NR if they were engaged in US trade or business and/or have other US-sourced income. US citizens and Green Card holders are taxed on their worldwide income as if they were residents of the United States regardless of where they reside and they must file form 1040. Many US expats file form 1040NR erroneously thinking they are no longer residents of the US. Such a return must be amended as soon as possible in order to avoid potential penalties.

Summary of Form 1040NR: Nonresident alien tax return

To summarise the filing obligations of nonresident aliens, it’s important to remember a few things. You must file a tax return if you are a non-resident alien and you are engaged in a trade or business in the U.S. during the year. Also, you will need to file Form 1040NR if you have the U.S. sourced income and on which tax withheld wasn’t enough.

Generally, the deadline to file Form 1040NR or Form 1040NR-EZ is June 15th of the following year. In cases when you are an employee and receive wages, which you need to pay taxes on, you will need to file Form 1040NR by April 15th of the following year. To get a 6-month extension a foreign person needs to file Form 4868.

At 1040 Abroad we love helping people with U.S. taxes. Contact us to receive a free email consultation or 20-min phone call to discuss your tax situation.

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