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PostedResident for Income Tax Purposes but Not Gift Tax Purposes
Phil Hodgen
Attorney, Principal
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I received an email from a practitioner this morning and figured it’s worth a blog post.Reader C in Sydney asked me:
Hi Phil,Would a MFJ couple (US citizen and NRA Spouse) using Sec 6013(g) Election qualify for Unlimited Spousal transfer from decedent US Citizen? Inquiring minds would like to know :)
Election to be a U.S. taxpayer
Nonresidents who are married to U.S. persons (citizens or residents for income tax purposes) can choose to be fully subject to U.S. income tax laws. Ordinarily, a sane person would attempt to avoid this status, if possible.But sometimes we do the math and it actually saves tax overall to do so. Sometimes this result is driven by differing tax rates that apply to married couples compared to a married person filing a separate tax return. Other times, tax savings are driven by a glitch in the foreign tax credit matrix.The election
The law allowing a nonresident to make this election is found in Internal Revenue Code Section 6013. Look at Regs. §1.6013-6 for the details of who can do it, when, and how.“U.S. taxpayer” for limited purposes only
Making the election does not make the nonresident individual a U.S. taxpayer for all purposes. Instead, the nonresident spouse is a resident of the United States for the purposes of:- Income tax; and
- Withholding tax imposed on wages paid by a U.S. employer.
A nonresident alien individual with respect to whom this subsection is in effect for the taxable year shall be treated as a resident of the United States—(A) for purposes of chapter 1 for all of such taxable year, and(B) for purposes of chapter 24 (relating to wage withholding) for payments of wages made during such taxable year.