First just to give you a brief of my situation, I am neither US citizen nor green card holder. I came to USA in 2008 to work using H1B visa. In 2010, I started to apply for green card (EB3) and my I-140 was approved in 2010. Then I have been waiting for my priority date to become current. In 2012, my company sent me to another country on a 1.5-year assignment but still keeps me on US payroll and keeps my H1B, and I am supposed to come back to the old position in the US in 2014. Because I am outside USA in 2013 only except some short business trips to USA, which is less than 30 days, so I expect to fail the Federal "substantial presence test" in 2013 thus I plan to file my 2013 tax
return as a non-resident alien. But I started to apply for US green card back in 2010 and have been waiting in the queue to file the paperwork for the next step (as you know, there is a long green card queue for Chinese people). And because I was physically working in USA from 2009 to 2012, so I always filed as tax resident in these years' tax return.
Now I am thinking about transferring some of my stocks of some public companies (already post tax in my US brokerage account) to my parents as gifts to them (they are not US resident and even have never been to US before), based on my current situation this year,
- Am I considered to be domiciled in the US for gift tax
purposes or not ?
- If I am subject to gift tax, I can still use the lifetime estate basic exclusion amount ($5,120,000) to do tax-free gifting as long as it is below this limit, right ?
- If I am NOT subject to gift tax, my understanding is that the gifting should be tax-free, and if I become domiciled in the US to be subject to gift tax in the future, I still have the full lifetime estate basic exclusion amount ($5,120,000) by then, right ?
- Because such gifting has a standard way to evaluate the value (the fair market price on the day of transfer which my broker can clearly write it down in my account statement), my guess is that, I do not really need attorney to be involved in the process and I only need to fill out some forms to submit to IRS by myself, right?
- Or if I am NOT subject to gift tax this year as I am considered to be not domicile in the US, I do not even need to submit anything to IRS ?
- And any other tax implications/consequences if I am NOT subject to gift tax this year?