Basics on Nonresident Taxation

Nonresidents of the U.S. are generally only subject to U.S. income taxes on U.S. source income, which includes the following:

U.S. source FDAP income includes interest, dividends, rents, royalties, and other periodic income.

When a non-U.S. person receives U.S. source FDAP income, those earnings are generally subject to a 30% withholding tax at source. For example, if a non-U.S. person receives a U.S. source dividend of $1,000, the broker must withhold $300 of taxes and remit the remaining $700 to the nonresident’s account. The $300 of taxes withheld are sent to the Internal Revenue Service (IRS).

How Does this Apply to Rental Income

When a nonresident purchases a rental property in the U.S., the rental income is U.S. source FDAP income. In general, the gross rental payment is subject to federal withholding taxes of 30%.

For example, assume John Doe is a citizen and resident of the Bahamas. John purchases a rental property in Miami, which he rents to a tenant for $2,000 per month. The $2,000 per month is U.S. source FDAP income and is subject to a withholding tax of 30%. At the end of the year, John would have paid $7,200 of withholding taxes on $24,000 of gross rental income.

Note how the tax treatment is quite punitive because the tax is assessed on gross income and not assessed after John deducts his rental expenses and depreciation. To fix this issue, John could make an election under Section 871(d) to treat the rental income as effectively connected income (ECI).

By treating the income as ECI, John can report income and expenses and only pay income taxes on the net taxable income. The election is made with the Form 1040-NR (US Nonresident Alien Income Tax Return).

How to Make the Election on Form 1040-NR

The Section 871(d) election allows taxpayers to report gross rental income, expenses, and depreciation. The taxes owed will be calculated on the net taxable income rather than a withholding tax on gross rents.

There are several steps the nonresident taxpayer must take to complete the election:

  • The taxpayer should check the box on Schedule OI of Form 1040-NR, which states that the taxpayer is making an election under IRC Section 871(d). The taxpayer should also attach an election statement to their Form 1040-NR.
  • The taxpayer must obtain a U.S. taxpayer identification number (TIN). Once the nonresident obtains a TIN, the taxpayer can complete Form W-8ECI and provide the withholding certificate to the payor. The Form W-ECI confirms that the nonresident will treat the income as effectively connected with a U.S. trade or business.
  • The taxpayer tracks their rental income, expenses, and depreciation expense for the property. The taxpayer reports these items on Schedule E with Form 1040-NR.

Once the taxpayer makes the election in the first year, they must continue to check the box on Schedule OI which states the election was made in a prior year and they continue to treat the income as ECI.

Continuing with the example above, assume that John has $24,000 of gross rental income, $14,000 of rental expenses, and depreciation expense of $4,000. The net taxable income from the property is now only $4,000, subject to ordinary income tax rates. By making the 871(d) election, John saves a substantial amount of federal income tax.