Alamo, CA asked in Tax Law and Immigration Law for California

Q: Can my foreign partner with ITIN and a USA bank simply file a 1040 or does he have to file a 1040NR?

Can my foreign partner (who only visits the USA and does not live in the USA) with ITIN and a USA bank account simply file an IRS form 1040 instead of 1040NR? Also would this partner need to declare his foreign (Irish) income on the 1040?

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1 Lawyer Answer
Matthew R. Porter
Matthew R. Porter
  • Tax Law Lawyer
  • Columbus, OH

A: U.S. tax residents are subject to worldwide taxation. Your friend should discuss this situation with an experienced international tax accountant to determine if there is an opportunity to make an election to be treated as a U.S. tax resident. If there is an election to be treated as a U.S. tax resident, that would have potentially unforeseen consequences that may not be beneficial to your friend in terms of tax compliance and reporting. The general framework under the Internal Revenue Code is that if you are not a citizen of the United States, then you need to follow very specific rules to determine if you are a resident alien or a nonresident alien for tax purposes. Generally, you are considered a resident alien if you meet either the green card test or the substantial presence test. You are considered a nonresident alien for the year if you are not a U.S. resident under either of these tests. Then the tax compliance rules follow accordingly. Again, it would be best to get a consultation with an experienced international tax accountant so you can address the unique circumstances of your friend's case.

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