The very first question to determine during planning is whether a non-citizen individual is considered a U.S. resident for income tax purposes and for estate tax purposes.
For income tax purposes, a non-citizen is considered a U.S. resident if the individual meets any one of these tests: (1) green card test or (2) the substantial presence test (present in US for at least 31 days during the current year and at least 183 days for three prior years using a weighted average calculation). If an individual is considered a U.S. resident for income tax purposes, he will be taxed on the worldwide income.
For estate and gift taxes, a non-citizen is considered a U.S. resident if the individual intends to establish a domicile in the United States. A domicile is a person’s permanent place of abode in which the person intends to remain indefinitely or to which the person intends to return. One can have multiple residences, but only one domicile. This question is a subjective inquiry where many factors are considered, including income tax filing status, jurisdiction of the driver’s license, visa status, and location of person’s family and friends. The burden of proof is on the taxpayer to establish his domicile.
The difference in the outcome between U.S. residents and non-U.S. residents is huge: U.S. residents have an estate and gift tax exemption of $5.45MM, while non-U.S. residents have an estate tax exemption of only $60,000.
Disclaimer: This article only offers general information. Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions. As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship. ATTORNEY ADVERTISING