EB-5 Visa US Tax, FBAR & FATCA

EB-5 Visa & U.S. Tax: FATCA & FBAR 

EB-5 Visa U.S. Tax, FATCA & FBAR: When a foreign national is present in the United States on an investment visa known as the EB-5 visa, they are considered to be on temporary visa holder status. Nevertheless, the individual may still become subject to US tax on their worldwide income and required to report their foreign accounts and assets to the IRS — similar to a US citizen or Legal Permanent Resident (aka Green Card Holder). The IRS EB-5 visa U.S. tax rules are very complicated. Whether or not the EB-5 visa Holder is subject to US tax and worldwide reporting is determined by whether or not they meet the Substantial Presence Test (SPT).  The Substantial Presence Test is essentially a counting days test that is to determine how many days during the past three (3) years (using a specific 1:1, 3:1, and 6:1 ratio) the person has resided in the United States. When a foreign national EB-5 visa holder meets substantial presence, they are subject to U.S. tax on their worldwide income and are also required to disclose their global accounts, assets, and investment to the U.S government unless one of the exceptions or exclusions apply, or they take a treaty position (if applicable).

Let’s review the basics of EB-5 Visa U.S. Tax, FBAR & FATCA.

U.S. Worldwide Income & EB-5 Visa US Tax Rules

The United States follows a worldwide income tax model. This means that US persons are taxed on their worldwide income and required to report their foreign assets and accounts.

U.S. person may include EB-5 and other visa holders as well.

In order to qualify as a US person for tax and reporting  purposes, the EB-5 Visa Holder must fall into one of the following four (4) categories:

1. 1. 1. U.S. Citizen

      2. Legal Permanent Resident

      3. Foreign National who meets the Substantial Presence Test

      4. Former US person who did not properly expatriate

Let’s focus on category 3, and the Substantial Presence Test for EB-5 U.S. tax purposes.

Foreign National EB-5 Visa Holder

When a person is a US citizen or Legal Permanent Resident, their status is considered permanent — until they formally relinquish their green card or renounce their US citizenship (aka expatriation).

Unlike Legal Permanent Residents and US citizens, a foreign national such as an H1-B visa Holder is only subject to US tax as a US person in any year that they meet the Substantial Presence Test.

What is the Substantial Presence Test?

The Substantial Presence Test is essentially a math calculation; it boils down to counting days.

The test will directly impact EB-5 U.S. Tax and reporting requirements.

Generally, only U.S. Citizens and Legal Permanent residents are required to pay tax on  “US Effectively Connected Income” (money you earn while working in the United States).

However, if you qualify for the Substantial Presence Test, then the IRS will tax you on your WORLDWIDE income.

IRS Substantial Presence Test generally means that you were present in the United States for at least 30 days in the current year and a minimum total of 183 days over 3 years, using the following equation:

• • • 1 day = 1 day in the current year

    • 1 day = 1/3 day in the prior year

    • 1 day = 1/6 day two years prior

Example A: If you were here 100 days in 2016, 30 days in 2015, and 120 days in 2014, the calculation is as follows:

• • • 2016 = 100 days

    • 2015 = 30 days/3= 10 days

    • 2014 = 120 days/6 = 20 days

    • Total = 130 days, so you would not qualify under the substantial presence test and NOT be subject to U.S. Income tax on your worldwide income (and you will only pay tax on money earned while working in the US).

Example B: If you were here 180 days in 2016, 180 days in 2015, and 180 days in 2014, the calculation is as follows:

• • • 2016 = 180 days

    • 2015 = 180 days/3= 60 days

    • 2014 = 180 days/6 = 30 days

    • Total = 270 days, so you would qualify under the substantial presence test and will be subject to U.S. Income tax on your worldwide income, unless another exception applies.

EB-5 Visa, FBAR & FATCA Form 8938

FBAR refers to FinCEN Form 114 — which is used to report foreign bank and financial accounts.

FATCA refers to the Foreign Account Tax Compliance Act. 

When an EB-5 visa holder meets the Substantial Presence Test, not only are they subject to US tax on their worldwide income, but they are also subject to offshore reporting of their foreign assets, accounts, and investments.

EB-5 Visa, FBAR & FATCA

The FBAR and FATCA Form 8938 forms are not mutually exclusive of one another.

In other words, depending on the type of assets and value of the assets, anEB-5 visa Holder may be required to file either or both the FBAR and 8938 forms in the same year.

While the two forms have many similarities between them, they are not identical.

For example, while the FBAR is an electronic form that is filed separately from the tax return, FATCA Form 8938 is part of the actual 1040 tax return.

FBAR is required even when a tax return is not filed, whereas Form 8938 is only filed when a tax return is filed.

While the FBAR is used solely to report maximum account value, form 8938 has additional income reporting requirements, as well as additional threshold requirements for reporting.

The threshold for reporting the forms depends on the value of the accounts and assets, whether the filer is a U.S. resident or foreign resident, and whether the filer is filing their taxes Married Filing Jointly (MFJ), Married Filing Separate (MFS) or single.

EB-5 Visa US Tax & IRS Offshore Tax Compliance

When an EB-5 visa Holder is out of compliance for prior year tax disclosure and international information reporting, they may qualify for one of the offshore amnesty programs to safely get into compliance.

Contact our firm today for assistance with getting compliant.