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I have a short question. When I am a foreign f1 student for…

Customer Question
Hello, I have a short question. When...
Hello,
I have a short question.
When I am a foreign f1 student for 4 years and I am more than 183 days in a calendar year within the US but I do not have any income in the US at all, just income from capital gains in stocks, options and futures....do I need to pay the 30% tax on it?
Is my tax home in the US just because I study here for 4 years?
I still have a home, a bank account, personal belongings and a car in my home country, so in my opinion my tax home has not moved to the US and that would mean my capital gains are not considered to be U.S. source income.
And...if it does, would it make a difference if I go home during the 3 months summer vacation, because then I am not more than 1 year in the US (does the time restart when re-entering after 3 months), or does the 3 month interruption not make any difference?
Thanks a lot !
Have a good day!
Submitted: 5 months ago.Category: Capital Gains and Losses
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Answered in 21 minutes by:
12/11/2017
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago
bkb1956
bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal
Category: Capital Gains and Losses
Satisfied Customers: 5,987
Experience: 20+ years of experience as a tax preparer; 30+ years of experience as a real estate and corporate paralegal
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Welcome to Just Answer. My name is ***** ***** I will be happy to assist you.

Unfortunately, nonresident alien students and scholars and alien employees of foreign governments and international organizations who, at the time of their arrival in the United States, intend to reside in the United States for longer than 1 year are subject to the 30 percent taxation on their capital gains during any tax year (usually calendar year) in which they are present in the United States for 183 days or more, unless a tax treaty provides for a lesser rate of taxation.

Currently, there is no tax treaty in place between the U.S. and Panama.

This assumes that such capital gains are not effectively connected with the conduct of a United States trade or business.

These capital gains would be reported on page 4 (not page 1) of Form 1040NR and would not be reported on a Schedule D because they are being taxed at a flat rate of 30 percent or at a reduced flat rate under a tax treaty..

If you are not present in the U.S. for 183 days or more during the tax year the capital gains are realized, the 30 percent taxation does not apply.

https://www.irs.gov/individuals/international-taxpayers/the-taxation-of-capital-gains-of-nonresident-alien-students-scholars-and-employees-of-foreign-governments

Please let me know if I can assist you further.

Thank you and best regards,

Barb

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Customer reply replied 5 months ago
Hello Barbara,
thanks for your reply.
And leaving the country after 9 months (summer break) does not make a difference?
I mean...I intend to reside for 9 months and then come back after 3 months to stay again for 9 months.
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

Averaging 9 months x 30 days is 270 days.

You would be above the 183 days in a tax year.

I wish I had better news for you.

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Customer reply replied 5 months ago
No, I mean with the intend to reside in the us.
Besides that, then what does this side mean?
Does that not mean that a student needs to BE in the us more than 1 year AND receive a scholarship or fellowship or anything similar to have a tax home in the US?
https://www.irs.gov/individuals/international-taxpayers/nonresident-alien-students-and-the-tax-home-concept
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

See the following for an explanation of tax residency for F1 students:

https://www.irs.gov/individuals/international-taxpayers/alien-residency-examples

Basically, you are exempt for the first 5 years you are in the U.S., and the 183 days commences in the 6th year.

The capital gains issue is separate and I provided the explanation in my previous answer.

"Nonresident alien students and scholars and alien employees of foreign governments and international organizations who, at the time of their arrival in the United States, intend to reside in the United States for longer than 1 year are subject to the 30 percent taxation on their capital gains during any tax year (usually calendar year) in which they are present in the United States for 183 days or more, unless a tax treaty provides for a lesser rate of taxation."

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Customer reply replied 5 months ago
but I only intend to reside for 9 months and then leave.
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

But you said in your original question you have been here for four years. Is that not the case?

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Customer reply replied 5 months ago
No, the total time for studying will be 4 years (bachelor). But I will come every year in August and leave in May. So I will be more than 183 days in the US, but NEVER longer than 1 year.
I come, study 9 months and leave for 3 months, then again 9 months here and 3 months out, until I am finished after 4 years.
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

In what year did you first enter the U.S.?

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Customer reply replied 5 months ago
This is the first year, came in August and leave in May '18, then come back in August '18 , stay until May '19 and so on.
Customer reply replied 5 months ago
I know I don't need to pay for this year, but I want to know for future years
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

If you do not plan to reside in the U.S. for longer than 1 year, you are exempt from the 30 percent taxation on capital gains.

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Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

Future years would be the same--you would be exempt if you arrive in August of one year and leave in May the following year.

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Customer reply replied 5 months ago
basically it means, the stamp in the passport is the thing that is important for that? Not, the total length of study time?
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

Yes. Because you may have to prove the days in the U.S. during any one calendar year.

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Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

If you arrive in August of one year and leave in May of the next year, you will never be present in the U.S. for 183 days during a single calendar year.

Make sense?

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Customer reply replied 5 months ago
I mean, the study Programm goes 4 years, but I will NEVER stay more than 9 months here.
So, I can stay more than 183 during a calendar year, but as long as my passport says I am out before 1 year is over, everything is fine?
Just need to make sure that I leave before 1 year is full and then I can come back after a few days or weeks or months?
Customer reply replied 5 months ago
No, no... I make the 183 days full, because I come back in August in the same year
Customer reply replied 5 months ago
The question is, does the length of the study Programm (4 years) count or does the actual spent time in the US count FOR THE 1 YEAR RULE.
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

The actual amount of days you are in the U.S. during a calendar year counts for the 183 days as it applies to capital gains tax.

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Customer reply replied 5 months ago
but only if I "reside or intend to reside" for more than 1 year.
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

Which you do because you are enrolled in a 4-year study program.

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Customer reply replied 5 months ago
Ok...I got that.
But...what about this ?Based on all the above, the following statements can be made with respect to the issue of the tax home of foreign students:A nonresident alien student temporarily present in the United States in F, J, M, or Q status who, at the time of his arrival in the United States, intended to remain in the United States for a period longer than 1 year, and who is employed in the United States (or self-employed even if illegally under the immigration law) has established his tax home in the United States beginning on the date his employment or self-employment begins if such employment or self-employment is expected to last for a period longer than 1 year. Such a nonresident alien student shall be taxable on his U.S.--sourced capital gains income in any calendar year in which his presence in the United States equals or exceeds 183 days.
A nonresident alien student temporarily present in the United States in F, J, M, or Q status who, at the time of his arrival in the United States, intends to remain in the United States for a period longer than 1 year, and who is the recipient of a U.S. source scholarship or fellowship has established his tax home in the United States beginning on the first date he is eligible to receive such scholarship or fellowship income if his eligibility to receive such scholarship or fellowship income is expected to last for a period longer than 1 year. The nonresident alien student shall be taxable on his U.S. source capital gains income in any calendar year in which his presence in the United States equals or exceeds 183 days.
A nonresident alien student temporarily present in the United States in any nonimmigrant status who is not employed (or self-employed even if illegally under the immigration law) and is not the recipient of a U.S. source scholarship or fellowship, has not established a tax home in the United States. The nonresident alien student shall not be taxable on his U.S. source capital gains income in any calendar year in which his presence in the United States does not equal or exceed 183 days.
Customer reply replied 5 months ago
Especially the last 2 sentences. Does that not mean, no tax?
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

"The nonresident alien student shall not be taxable on his U.S. source capital gains income in any calendar year in which his presence in the United States does not equal or exceed 183 days."

You will exceed the 183 days.

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Customer reply replied 5 months ago
Does that not mean that he is NOT taxable? Otherwise the long text before that would not really make sense. :-(
I mean they write he needs to be there for 1 year AND receive fellowships or is employed.
If EVERYBODY that resides longer than 1 year would need to pay than they could just cancel the long text before.
Then it would not make a difference if you receive any other income or not.
Customer reply replied 5 months ago
Like "(does not equal) or exceed 183 days" ... "not" belongs to the left side, meaning that it CAN exceed 183 days....or not?
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

Each example is a different scenario with different facts and circumstances.

In each example, presence in the U.S. for more than 183 days is the deciding factor.

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Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

Not means does NOT exceed 183 days.

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Customer reply replied 5 months ago
34;The tax home of nonimmigrants temporarily present in the United States in F, J, M, or Q status, and who have U.S.-sourced scholarship/fellowship income, is in the United States if such nonimmigrants intend to remain in the United States for a period longer than 1 year."I always see the word "AND". Why do they always write "AND" if that does not have any meaning?
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

The word "and" does have meaning. Both requirements in each example must be met.

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Customer reply replied 5 months ago
34;Both" meaning 1 year AND income besides the capital gains?
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

Both meaning "A nonresident alien student temporarily present in the United States in any nonimmigrant status who is not employed (or self-employed even if illegally under the immigration law) AND is not the recipient of a U.S. source scholarship or fellowship, has not established a tax home in the United States."

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Customer reply replied 5 months ago
is that not good for me? I have nonimmigrant status and don't have income from employment or self-employment.
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

The third example applies to you:

"A nonresident alien student temporarily present in the United States in any nonimmigrant status who is not employed (or self-employed even if illegally under the immigration law) and is not the recipient of a U.S. source scholarship or fellowship, has not established a tax home in the United States. The nonresident alien student shall not be taxable on his U.S. source capital gains income in any calendar year in which his presence in the United States does not equal or exceed 183 days."

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Customer reply replied 5 months ago
it says I do NOT have a tax home in the US, right?
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

Correct, but it also goes on to say that you will be taxed on U.S. source capital gains in any calendar year in which you are present in the U.S. for 183 days or more.

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Customer reply replied 5 months ago
34;A nonresident alien who is present in the United States for 183 days or more is taxed on U.S. source capital gains only if the alien’s tax home is in the United States"
Customer reply replied 5 months ago
Same text, just different location.
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

But you are entering the U.S with the intention to be present for 4 years studying.

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Customer reply replied 5 months ago
but I don't have a tax home.
"The activity of being a student does not constitute a trade or business under the Internal Revenue Code, and thus, in and of itself, cannot establish a tax home."
From the same text.
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

I understand what you are saying, but I have provided you with the IRS guidance on this issue.

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Customer reply replied 5 months ago
Ok...just to finish this. What is your profession? Are you a tax lawyer, or what do you work?
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

I am an IRS Enrolled Agent which is the highest credential given by the IRS and have over 20 years of tax preparation experience.

You can read about Enrolled Agents here: https://www.irs.gov/tax-professionals/enrolled-agents/enrolled-agent-information

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Customer reply replied 5 months ago
Ok...thanks a lot? Bye
Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

You're welcome.

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Tax Expert: bkb1956, Enrolled Agent/Real Estate & Corporate Paralegal replied 5 months ago

Here is additional clarification:

"Most foreign students and scholars and most alien employees of foreign governments and of international organizations have shifted tax homes to the United States on the day of their arrival in the United States - unless the particular program or employment which brings them to the United States clearly terminates in less than one year and they have no intention to remain in the United States after the termination of such program or employment."

https://www.irs.gov/individuals/international-taxpayers/the-taxation-of-capital-gains-of-nonresident-alien-students-scholars-and-employees-of-foreign-governments

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