Читать книгу Taxation of Canadians in America - David Levine - Страница 9

All US citizens and noncitizens of the US that are residents (referred to as resident aliens) are required to file a US tax return if they meet certain income thresholds. To be clear, if you are considered a resident of the US, you are subject to the tax laws of the US, even if you are here illegally. You are a resident alien if you meet one of the following tests:

• Legal Permanent Resident (e.g., Green Card holder).

• You meet a 183-day substantial presence test. This is a two-part test and if you fail the first part of the test, you are generally a US resident, with limited exceptions. If you fail only the second part of the test, you can file Closer Connection Exception Statement for Aliens (Form 8840) to claim a closer connection to a foreign country (Canada) and will not be considered a US resident, assuming that in fact you do have a closer connection to Canada.

• Part 1 of the test: You are physically present in the US at least 183 days during the calendar year. Note that each partial day counts as one day. The only exception is if you are traveling by plane and you simply pass through the US on your way to another foreign destination.

• Part 2 of the test: You are physically present in the US for at least 183 days using the following three-year formula:

• Year 1: Each day counts as one day.

• Year X-1: Each three days counts as one day.

• Year X-2: Each six days counts as one day.

For example, if you spent 122 days each year, each of the last three years, this is what you would have:

• In 2011, you spent 122 days, times 1/1 = 122 days.

• In 2010, you spent 122 days, times 1/3 = 41 days.

• In 2009, you spent 122 days, times 1/6 = 20 days.

Total number of days using the formula, equals 183 days and you fail Part 2 of the test and are considered a US resident unless you file Form 8840.

Note: If you arrive in the US on November 1 and leave on March 31, you would have been in the US a total of 121 days. If you did this year in and year out, you would pass the second part of the test most years. Every leap year, you would have stayed in the US 122 days and therefore failed the test and must therefore file Form 8840 to avoid being considered a US resident and subject to tax.

What makes this rule confusing are primarily two things: the fact that the test has two parts, and the fact that immigration has different rules. Remember that being in the US for less than 183 days is only one part of the test, if you are in the US every year for 122 days or more, you have failed part two of the test and must file Form 8840 to show the IRS that you are not a US resident. If you fail the second part of the test and do not file Form 8840, you are a US taxpayer and subject to US tax. In the Introduction, we mentioned that there is an estimated 1 million Canadians in the US that are residents who are not filing returns. It is this group of Canadians that spend four months or more each year in the US and do not file Form 8840 that we are mostly referring to.

There is another set of rules that you need to be concerned about: the immigration rules. These are the rules that the customs agents at the border are concerned with. These rules use a rolling 12-month period instead of the calendar year the IRS uses. For example, if you stay in the US from October 1 through April 1, you would have been in the US 183 consecutive days, yet only be in the US for 92 days in the first year and 91 days in the second year. If you assume no other days in the US in either year, you clearly passed both parts of the residency test for tax purposes, but failed the test for immigration purposes. To make matters worse, the Customs agents are not consistent in their application of the rules. Fortunately, you are typically looking at only being hassled by the Customs agents and nothing serious comes of it, but it does make it confusing for you when you are constantly getting conflicting answers.

If you are a resident or citizen, you still may not have to file a tax return if your income is less than certain thresholds. Table 1 shoes the income thresholds for two categories. (If these categories do not apply to you, you may fall into another category and corresponding threshold.)