I received an email from a CPA friend of mine today. She and another person in her office disagreed on a seemingly simple question. They were preparing a Form 1040NR for a nonresident alien and wanted to get an extension of time to file the tax return. They both agreed that Form 4868 should be filed before June 15 to get the extension of time to file a timely tax return. But they disagreed on making the tax payment: is the tax payment due on April 15 or June 15?
I was about to reflexively answer her question when I thought to myself, “Hang on. Let’s look at the Code.” I’m glad I did. My reflexive answer would have been conservative, safe, and wrong. (Hint: I would have said “Pay the tax by April 15, file Form 4868 by June 15. That’s wrong. But it’s safe!)
This blog post will now explain the rules entirely without using IRS Publications, instructions to various forms, or other similar unreliable and lazy crutches. This is totally an Internal Revenue Code plus Treasury Regulations boondoggle. The Board of Accountancy should award you bonus CPE credits for reading this blog post. 🙂
Since this post is written in response to a CPA’s question (and she will read this), you should approach it as if you are a CPA. Basic terminology will not be explained.
A nonresident alien who has U.S. taxable income and must file a U.S. income tax return (Form 1040NR) must do so on or before June 15.
The nonresident alien can get an extension of time to file a tax return by filing Form 4868. This will extend the filing deadline to December 15.
If the nonresident alien owes U.S. income tax, the payment deadline is June 15.
The rules are cheerfully and needlessly different for a nonresident alien who has wage income subject to U.S. income tax withholding. For these folks, the filing deadline is April 15. An extension of time will run to October 15. The payment deadline is April 15 for any tax liability.
I am going to ignore nonresident aliens who have wage income subject to U.S. income tax withholding. Let’s just talk about my friend’s client, who has rental income from U.S. real property and must file Form 1040NR to report the income and pay the income tax.
Internal Revenue Code Section 6072(c) contains the rule:
Returns made by nonresident alien individuals (other than those whose wages are subject to withholding under chapter 24) . . . under section 6012 on the basis of a calendar year shall be filed on or before the 15th day of June following the close of the calendar year and such returns made on the basis of a fiscal year shall be filed on or before the 15th day of the 6th month following the close of the fiscal year.
(Section 6012 of the Internal Revenue Code is the basic rule that says humans and other sentient and non-sentient beings must file income tax returns in the United States).
I am going to ignore fiscal year taxpayers. Rare indeed is the nonresident alien who has the presence of mind to claim a fiscal year for a tax year on his or her U.S. income tax return. Plus it is well known that fiscal year accounting (and the accrual method, for that matter) cause brain damage. It’s true! You can look it up.
So the nonresident alien who is using the calendar year as his or her tax year has a filing deadline of June 15.
There are the usual rules for pushing the filing deadline forward if June 15 falls on a weekend or public holiday. In 2013, for instance, June 15 falls on a Saturday, so the actual filing deadline will be the first business day after that, which is Monday, June 17, 2013.
You can find the filing deadline information easily enough in the Instructions to Form 1040NR.
A nonresident alien (again we are talking about someone with no wage income subject to U.S. income tax withholding)) who wants more time to file a tax return can apply for an extension. This is done with the normal Form 4868.
A properly and timely-filed Form 4868 extends the filing deadline for our nonresident alien to file his Form 1040NR until December 15. You want to know why? Here you go.
The time prescribed for filing the tax return is June 15. Internal Revenue Code Section 6072(c). The taxpayer can get an automatic six month extension of time from the time prescribed for filng the tax return. Treasury Regulations Section 1.6081-4(a) says:
(a) In general. An individual who is required to file an individual income tax return will be allowed an automatic 6-month extension of time to file the return after the date prescribed for filing the return if the individual files an application under this section in accordance with paragraph (b) of this section. In the case of an individual described in §1.6081-5(a)(5) or (6), the automatic 6-month extension will run concurrently with the extension of time to file granted pursuant to §1.6081-5.
The last sentence does not apply to a nonresident alien. An individual described in Treasury Regulations Section 1.6081-5(a)(5) or 1.6081-5(a)(6) is a U.S. citizen or resident living abroad. A nonresident alien is not that.
The method for getting the automatic six month extension is spelled out in Treasury Regulations Section 1.6081-5(b). In plain English? File Form 4868.
Now we know when the nonresident alien must file an income tax return that is treated as filed “on time”. What if the taxpayer has a tax liability? What is the payment deadline for the tax payment?
The general rule is that income tax is due and payable at the time and place fixed for filing the tax return. Internal Revenue Code Section 6151(a) says:
Except as otherwise provided in this subchapter, when a return of tax is required under this title or regulations, the person required to make such return shall, without assessment or notice and demand from the Secretary, pay such tax to the internal revenue officer with whom the return is filed, and shall pay such tax at the time and place fixed for filing the return (determined without regard to any extension of time for filing the return).
As is common in the Internal Revenue Code, we are invited to go on a treasure hunt. “Except as otherwise provided in this subchapter” is the magic incantation that sends us on our quest. “This subchapter” refers to Title 26, Subtitle F, Chapter 62, Subchapter A of the United States Code. (Title 26 of the United States Code is colloquially referred to as the “Internal Revenue Code” and it is where Federal tax law lives). Subchapter A includes Sections 6151 through 6159. Trust me. There is no exception lurking in Sections 6151 through 6159 of the Internal Revenue Code that would apply to our nonresident alien.
Therefore, we conclude that a nonresident alien individual who must file Form 1040NR must — if tax is due — pay that tax on or before June 15.
An extension of time to file a tax return does not extend the time for payment of the tax due. Internal Revenue Code Section 6151(a); Treasury Regulations Section 1.6151(a)(1).
Note that the normal rules for estimated payments of tax will apply. If you make a big lump sum payment on June 15 and you should have made quarterly estimated payments, expect a little letter from the IRS asking you to shed some blood in penance.
Finally, I will just wave a flag here. My friend the CPA did not have this problem so I did not look at it. But if the nonresident alien taxpayer had received wage income on which withholding was imposed under “Chapter 24” (i.e., Title 26, Subtitle F, Chapter 24 of the United States Code), then all of this would not apply.