Nonresident alien taxation

 summarizes how the US applies its taxes to a non-US investor (specifically, a US nonresident alien) holding assets such as US stocks, US bonds, US cash deposits, and US domiciled ETFs and mutual funds.

Non-US investors may face both US dividend withholding taxes and US estate taxes, on top of any taxation by their country of residence. There can also be a risk of US gift taxes.

Who is a nonresident alien (NRA)?
If you are an alien (that is, you are not a US citizen), the US considers you to be a nonresident alien unless you meet one of two tests. You are a resident alien of the United States for tax purposes if you meet either the green card test or the substantial presence test for the calendar year (January 1-December 31).

In short, if you are not a US citizen or green card holder and have not been in the US for 183 days (calculated over a 3 year period), you are a nonresident alien for US tax purposes.

How does the US classify types of income for nonresident aliens?
For nonresident aliens, US source income falls into one of two classifications: The remainder of this article deals only with fixed, determinable, annual, and periodic (FDAP) income.
 * Effectively connected income (ECI). This is income received from engaging in a trade or business in the US. Aside from J, F, M and Q visa holders, few nonresident alien investors will receive this type of US income. ECI income is taxed by the US at regular US graduated rates.
 * Fixed, determinable, annual, and periodic (FDAP). This is, broadly, US source income that is not connected with operating a US trade or business. For example, interest paid by US banks and brokers, dividends paid by US stocks, rent received, pensions, and annuities. This would be the most common type of income received from the US by nonresident aliens, for example, from directly holding US stocks or US domiciled ETFs. FDAP income is taxed by the US at either a flat 30% rate or any lower treaty rate, although with some notable exceptions, in particular most interest.

Are capital gains taxable for a nonresident alien?
No. Capital gains from US domiciled ETFs and US stocks are not taxable by the IRS. According to IRS Publication 519:

"A nonresident alien usually is subject to U.S. income tax only on U.S. source income. If you were in the United States for less than 183 days during the tax year, capital gains are tax exempt unless they are effectively connected with a trade or business in the United States during your tax year."

Also, according to a reply received for a paid consultation with Greenback Expat Tax Services Limited:

"Investing in ETFs will not count as effectively connected income and therefore any capital gains from the sale of these will be tax free as a nonresident."

Is interest taxable for a nonresident alien?
Sometimes. Although US source interest in general is classified as fixed, determinable, annual, or periodical (FDAP) income, and so taxable at a 30% flat US rate, the wide range of exclusions means that the most common types of US source interest received by nonresident aliens, such as that paid by banks, savings and loan institutions, credit unions, and insurance companies, is not taxable by the IRS. This means that holding US treasuries can be a tax-efficient way for you to hold some US assets.

US source interest that does not fall under an exception may be taxable to the US for a nonresident alien. Examples include interest effectively connected with operating a US trade or business, and broker interest on cash deposits held at US brokers. The standard rate is 30%. This can be lowered or eliminated if your country of residence has a tax treaty with the US.

Are dividends taxable for a nonresident alien?
Yes. The US will withhold tax on dividends paid to nonresident aliens by US domiciled ETFs and US stocks.

Your broker will apply this withholding to dividends paid to you as an investor. Withholding does not apply to capital gains or to interest payments. A portion of the dividend paid by an ETF may be exempt from nonresident withholding; see below for more. The standard rate is 30%. This can be lowered (usually to 15%) if your country of residency has a tax treaty with the US, by submitting a W-8BEN form via your broker.

Apart from an exemption for some US source 'portfolio interest' income, discussed below, US withholding tax applies regardless of the actual assets held by a US domiciled ETF. Even if all of the ETF's assets are non-US stocks, the US will still take 30% or lower treaty rate in dividend tax. Holding the same assets in a non-US domiciled ETF eliminates this US tax overhead.

If you live in a country with poor or no US tax treaty coverage, you should strongly consider using non-US domiciled ETFs instead of US domiciled ones, as a way to reduce or even eliminate the US tax you pay on dividends from funds holding stocks.

Estimating tax withholding leakage
Other than the tax withholding that shows on your brokerage account's statement, the fund itself gets taxes withheld on dividends received. This is usually applicable to funds holding international equities. This number affects investors, but is mostly invisible unless you look at the annual reports.

Short-term capital gain distributions paid as dividends
A US domiciled ETF that pays a short-term capital gains distribution will generally include this in its dividend. For US investors this makes no difference to their tax or other positions.

However, capital gains are not US taxable to nonresidents. In this case, an ETF should exempt the portion of a dividend that is due to short-term capital gains from nonresident alien withholding. For this to occur correctly, the broker needs to be aware that the withholding rate on this payment to nonresidents is less than the standard or treaty rate.

Interest distributions paid as dividends
Where a US domiciled ETF receives US source interest on its holdings, and that interest would not have been taxable to a US nonresident if paid directly, the portion of the dividend attributable to this interest is 'portfolio interest' and can be exempted from nonresident withholding. This situation is unlikely in ETFs that hold only stocks, but will be common in bond ETFs, and any mixed-asset ETFs.

Again, for this to occur correctly both the ETF provider and the broker need to be aware of the relevant qualified interest income (QII) regulations.

This exemption is particularly narrow. It does not apply to any non-US source interest or dividends that the ETF receives. This means that a US domiciled ETF containing non-US bonds or non-US stocks suffers the standard 30% or lower treaty rate US tax on dividends. If the investor had instead held the ETF's assets either directly or through a non-US domiciled ETF, they would have paid no US tax.

TD Ameritrade tax withholding experiment
A test in 2015 using a TD Ameritrade account and a selection of US domiciled ETFs: MUB, BIV, LQD, BNDX, VIG, VTI and VXUS, shows that all had tax withheld at 30% from the dividends distributed, with the exception of MUB and VXUS. MUB holds US municipal bonds, which are tax-exempt from US federal taxes. VXUS holds stocks of non-US companies.

Is filing a US 1040-NR tax return necessary?
Generally, no. If your broker applies the correct US tax withholding for your home country (so 30% without a tax treaty, or the treaty rate if applicable), your US tax withholding will exactly match your US tax liability. In this case, and provided you have no other taxable US source income, the IRS does not require you to file a form 1040-NR nonresident alien US tax return.

If you supply your broker with a form W-8BEN, this should ensure that they withhold the correct amount of US tax on your dividends. The most common case where US tax withholding is incorrect is where a broker withholds 30% rather than a lower treaty rate. This can occur if you have not provided a W-8BEN, it has expired, or the broker has ignored it. In this case, you can file a form 1040-NR with the IRS to recover the overwithholding. The IRS provides a special "simplified procedure" for this.

Are nonresident aliens at risk from US estate taxes?
Potentially, yes. Except for Canada, if you hold US domiciled ETFs or US stocks and your home country does not have a separate estate tax treaty with the US, then on your death you risk becoming liable for US estate taxes. While the US has an extensive network of income tax treaties, only a handful of countries have estate tax treaties with the US.

Canada does not have a separate estate tax treaty with the US. Instead, the US maintains a single treaty with Canada that combines both income taxes and estate taxes. Under this combined treaty, Canadians receive protection up to the level of the US estate tax exemption allowed to US citizens, the same as generally provided by the separate US estate tax treaties for other countries.


 * Warning: Where an account holder who is a US nonresident alien dies, and there is no US estate tax treaty coverage, the US will levy up to 40% estate tax on US assets over the value of $60,000 USD. This includes US domiciled holdings such as funds and ETFs, as well as cash sums in a US-based brokerage account, stocks of US corporations, and US IRAs, 401ks, and similar retirement saving accounts, but excludes cash deposits at a US bank and most directly-held US treasury bonds.


 * If you are in this situation you should strongly consider using non-US domiciled ETFs instead of US domiciled ones, and if using a US-based broker, ensure that the cash balance does not exceed $60,000. This eliminates the threat of estate taxes for most nonresident aliens, the main exception being nonresident aliens who hold US situated retirement accounts such as IRAs and 401ks.

Even where a treaty protects you from US estate tax, there are still hurdles and delays in accessing US domiciled holdings: "Upon the death of the beneficial owner, the U.S. brokerage firm is forbidden under U.S. tax law from transferring the assets from the decedent’s account until the IRS has concluded its estate tax audit."

A US estate tax treaty may protect you from US estate taxes up to or even beyond a level equivalent to that allowed to US citizens, but the presence of a US estate tax treaty does not guarantee that this is the case. In particular, the US estate tax treaties with Ireland and South Africa may not offer worthwhile protection from US estate taxes. If you are considering holding US domiciled ETFs and other US situated assets, you should check any applicable US estate tax treaty details very carefully before proceeding. Residency is not normally a sufficient condition for using a US estate tax treaty. This type of treaty is generally controlled by domicile, a legal concept that, although it includes residency as one of its components, is different and distinct from residency; citizenship may also be a factor.

You may face local estate taxes as well, and in the absence of a US estate tax treaty this can cause double taxation. In addition, some US estate tax treaties do not provide for estate tax credits, and this may also cause double taxation.

US estate tax liability calculator
If you do not have coverage from a US estate tax treaty, the following form estimates your US estate tax liability for a given level of US situated assets. The result is based on the standard nonresident alien unified credit of $13,000 USD, which gives you an exemption of just $60,000 USD. (Investors in countries with a US estate tax treaty should consult the relevant treaty to determine their own potential exposure to US estate tax.)

Are nonresident aliens at risk from US gift taxes?
Sometimes. Nonresident aliens are not subject to US gift tax on gifts of 'intangible property', such as most US domiciled ETFs and US stocks, even though these assets might be taxable under the US estate tax.

In contrast, gifts of 'tangible property', such as US situated real estate, are potentially subject to US gift tax, even when made between two US nonresident aliens with no other connections to the US. A few US estate tax treaties also cover US gift taxes.


 * Warning: Even though a cash deposit in a US bank is excluded under the US estate tax, the IRS views cash deposits as 'tangible property' and so subject to US gift tax. There is no unlimited marital gift tax exemption for US nonresident aliens.


 * If you hold any US cash accounts, you should avoid directly making any gifts of US cash above the minimal US gift tax exemption.

Foreign Account Tax Compliance Act (FATCA) and NRAs
From Wikipedia: "The Foreign Account Tax Compliance Act (FATCA) is a United States federal law that requires United States persons, including individuals who live outside the United States, to report their financial accounts held outside of the United States, and requires foreign financial institutions to report to the Internal Revenue Service (IRS) about their U.S. clients. Congress enacted FATCA to make it more difficult for U.S. taxpayers to conceal assets held in offshore accounts and shell corporations, and thus to recoup federal tax revenues."

Regarding non-US clients of a foreign financial institution (FFI) who will not provide the documentation needed for FATCA:

"Generally, any account holder whose account is at least $50,000 that does not comply with reasonable requests for information necessary to determine whether its account is a United States account will be a 'recalcitrant account holder' and will be subject to 30% withholding on withholdable payments and gross proceeds from the sale or disposition of U.S. assets which can produce interest or dividends."

"FATCA withholding also applies to gross proceeds from the sale of U.S. securities, which are excluded from NRA withholding. In addition, FATCA withholding may not be reduced or eliminated by making a treaty claim on a Form W-8. Where an FFI is not FATCA-compliant, full 30% FATCA withholding will apply. When FATCA withholding is required, the withholding agent does not impose withholding under the existing NRA rules. Conversely, where an FFI is FATCA-compliant, FATCA withholding will not apply, and withholding under the existing NRA withholding rules will apply (subject to treaty rates)."

To avoid running into FATCA withholding, use a FATCA-compliant broker where possible, and make sure your W-8BEN form is up-to-date. Most US brokers and larger international ones are FATCA-compliant. You can confirm by checking with your brokerage firm if you are investing in US domiciled securities.