Navigating U.S. Investment: A Tax Guide for Non-Resident Aliens

For a non-resident alien (NRA), a term we will define shortly, investing in the U.S. involves a unique set of tax rules. These rules can be surprisingly favorable in some areas and dangerously punitive in others. Understanding this duality is the first step toward building a successful and tax-efficient U.S. investment strategy.

This article is designed to simplify these complex concepts. It is not personal tax advice, as every client’s situation is unique, but rather an educational guide to help you think about asking the right questions. We will cover the two primary areas of U.S. taxation that affect you:

1. U.S. Income Tax: How your U.S.-based investment income is taxed annually
2. U.S. Estate & Gift Tax: How your U.S.-based assets are taxed upon your death or if you gift them

Part 1: The U.S. Income Tax Rules for NRAs

First, who is a “Non-Resident Alien” (NRA)? Per the Internal Revenue Service, for U.S. tax purposes, you are considered an NRA if you are not a U.S. citizen and do not meet either the “Green Card Test” or the “Substantial Presence Test” (a mathematical test based on your days of physical presence in the U.S.).

This second test (the Substantial Presence Test) is purely mathematical, based on your days of physical presence in the U.S. You will be considered a U.S. resident for income tax purposes if you are present in the U.S. for:

1. At least 31 days in the current year, AND
2. A three-year “look-back” weighted day count that equals 183 days or more.

The 3-year formula is: (100% of current year’s days) + (1/3 of the first prior year’s days) + (1/6 of the second prior year's days). Even if you meet this test, you may still be treated as an NRA if you are in the U.S. for fewer than 183 days in the current year and can prove you have a “closer connection” to a foreign country.

As an NRA, your U.S. income is generally separated into two distinct categories, each taxed differently.

1. Effectively Connected Income (ECI) – This is income earned from an active U.S. trade or business. Think of it as “active” income. This includes salary from a U.S. job or profits from a business you actively manage in the U.S. For investors, the most common example is rental income from a U.S. property (which you can often elect to treat as ECI). ECI is taxed at the same graduated income tax rates that U.S. citizens pay. You are required to file a U.S. tax return (Form 1040-NR) to report this income and any applicable deductions.
2. Fixed, Determinable, Annual, or Periodical (FDAP) Income – This is the category that applies to most investors. FDAP is “passive” income, such as interest, dividends, and royalties from U.S. sources. FDAP income is not taxed at graduated rates. Instead, it is subject to a flat 30% withholding tax (or a lower rate if a tax treaty exists between your home country and the U.S.). This tax is withheld at the source, meaning your broker or bank remits it directly to the IRS. You generally do not have to file a U.S. tax return for this income.

The Good News: Major Exemptions for Investors

The 30% flat tax on FDAP income may sound high, but two of the most significant exemptions are highly beneficial for global investors.

1. The Capital Gains Exemption (The Biggest Benefit) – This is, perhaps, the single most attractive feature of the U.S. tax code for non-resident investors. As an NRA, you are generally not subject to any U.S. tax on capital gains from the sale of U.S. stocks, bonds, or mutual funds. As long as these gains are not ECI and you are not physically present in the U.S. for 183 days or more in the tax year, generally, no U.S. capital gains tax applies on U.S. securities for NRAs, subject to presence, tax-home, and source rules, and state tax exposure.
2. The “Portfolio Interest” Exemption – More good news: the 30% tax on interest income is waived for “portfolio interest.” This category includes most forms of interest you would receive as an investor, such as:
   
   • Interest on U.S. bank deposits (checking and savings).
   • Interest from U.S. Treasury bonds, corporate bonds, and municipal bonds.

This exemption allows you to hold significant U.S. bond portfolios and cash positions without incurring U.S. income tax on the interest. Note that we will need to be careful with cash management, as depending on the source of the interest on the account, some interest may be subject to tax. In short, some U.S. bank interest is exempt, but other forms of interest might not qualify (e.g., interest from a U.S. brokerage account on cash in the account may have different treatment).

The Big Exception: U.S. Real Estate (FIRPTA)

There is one major exception to these favorable rules: U.S. real property. The U.S. government ensures it gets its tax share from sales of U.S. land and buildings. Under the Foreign Investment in Real Property Tax Act (FIRPTA), when an NRA sells a U.S. real estate interest, that gain is always treated as “Effectively Connected Income” (ECI), subject to graduated U.S. income tax. To ensure the tax is paid, the IRS requires the buyer to withhold 15% of the gross sales price.

Part 2: The U.S. Estate Tax Trap (The $60,000 Problem)

While the U.S. income tax rules are often favorable for NRA investors, the U.S. estate tax rules are precisely the opposite. This is, without question, the greatest financial risk for non-resident clients investing in the U.S.

Domicile vs. Residency

First, it's critical to know that estate tax is based on “domicile,” not “residency.” Domicile is a legal concept based on your long-term intent to remain in a place. While you may be a non-resident for income tax, if you are not domiciled in the U.S., you face a separate set of estate tax rules.

The Exemption Cliff

Here is the core of the problem. According to Title 26 of the U.S. Code, Section 1445, which pertains to the withholding of tax on dispositions of United States real property interests, a U.S. citizen or domiciliary currently enjoys a federal estate tax exemption of $15 million (starting in January 2026 and indexed for inflation thereafter). In contrast, a non-domiciled, non-resident alien has an estate tax exemption of only $60,000 on their U.S.-based assets. Any U.S. assets you own above this $60,000 threshold are subject to U.S. estate tax at rates up to 40%.

What is a "U.S. Situs" Asset?

The tax only applies to your U.S.-based or “U.S. situs” assets. The definition of this term is the most important part of your planning. Assets that are U.S. Situs (The “Bad List” for Estate Tax):

• U.S. real estate (e.g., a condo in New York or Miami)
• Tangible personal property located in the U.S. (e.g., art, cars, jewelry)
• (Crucially) Shares of U.S. corporations – This includes stock in companies like Apple, Google, or Microsoft, even if you hold them in a brokerage account in your home country.

Assets that are not U.S. Situs (The “Good List” for Estate Tax):

• U.S. bank deposits (non-business)
• U.S. bonds and debt obligations (that qualify for the “portfolio interest” exemption)
• Shares of foreign corporations

The Planning Dilemma

This creates a direct conflict for investors. U.S. stocks (like Apple) are good for income tax (no capital gains tax) but terrible for estate tax (they are U.S. situs assets). Conversely, U.S. bonds are good for income tax (no interest tax) and good for estate tax (they are not U.S. situs assets).

Part 3: Strategies and Your Path Forward

Understanding this income vs. estate tax conflict is the key to smart planning. Our strategies focus on maximizing the income tax benefits while legally and effectively minimizing or eliminating the 40% estate tax exposure. Some of the common strategies we explore include:

1. Strategic Asset Selection: Tilting a portfolio toward assets that are not U.S. situs, such as U.S. bonds or U.S.-based mutual funds that invest in foreign stocks.
2. Using a “Blocker” Corporation: Holding your U.S. stocks through a properly structured non-U.S. corporation. This way, upon your death, you do not own U.S. stocks (a U.S. situs asset); you own shares in a foreign company (a non-U.S. situs asset), which is not subject to the U.S. estate tax. This strategy can introduce significant compliance issues in opening U.S. brokerage accounts, however.
3. Drop-Off Trusts: The U.S. gift tax rules for NRAs have a powerful loophole. While U.S. stocks are subject to estate tax, they are considered “intangible property” and are generally not subject to gift tax. This allows an NRA to make a lifetime gift of their U.S. stocks into a specially designed irrevocable trust. By doing so, the assets are “dropped” from your estate. Importantly, this type of trust is created and funded before you become a U.S. income or estate tax resident. This can be a complex strategy, but it may allow for the removal of U.S. stocks from your estate, permanently shielding them from the 40% estate tax (even if you later become a U.S. citizen).

A Final Word

The U.S. tax system for international investors is a puzzle. It offers significant rewards but also contains well-hidden traps. Now that we’ve provided a high-level overview of the landscape, the real work can begin. Our role at Wealthspire is to act as your partner, coordinating with your legal and tax advisors to create a holistic plan that fits your specific goals. We look forward to discussing how these rules might apply to your personal circumstances and building a strategy that lets you invest in the U.S. with clarity and confidence.

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