I file 1040-NR. Do I require to file form 8938 and FBAR (FinCEN form-114) ?

Forum|Forum|3 years ago
September 26, 2022
2 replies
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Hello,

I am a Canadian Citizen and now I have acquired a US Green Card. Now, I work for a US company, however working remotely from Canada.

My employer deducts only US Federal tax from my pay and not a state tax as I am not residing in US. I will receive W-2.

I will be filing my 1040-NR return.

My question is, do I need to file Form 8938 and/or FBAR (FinCEN form 114)?

Not A Product Question

Anonymous_

Level 15

@pk12_2 ?

pk_

Level 15

@asitamin , from your post, I understand that :

(a) your are a Canadian citizen working remotely for US entity;

(b) you are having US federal taxes withheld ( + FICA ? ) but not State Taxes because you are domiciled in Canada;

The issue is whether you ARE a resident of US or NOT.

If you are a resident, then you are subject to US taxes ( even if domiciled abroad) and you file a form 1040. You are also subject to FBAR ( Fincen form 114) and FATCA regs ( form 8938 ).

If you are NOT a resident, then you are not subject to US taxes and NOT subject to FBAR and FATCA regs -- generally.

So the whole thing hangs on your immigration status .

Please answer my questions, including if you are married ( and filing a joint return) and if so to a US person or not ?

In the meantime i list below a page from IRS covering the generalities of Green Card and as it affects residency --:

https://www.irs.gov/individuals/international-taxpayers/residency-starting-and-ending-dates.

I will circle back once I hear back from you.

@Anonymous_ -- thank you

asitaminAuthor

Level 2

Thanks @pk12_2

(c) Yes, I had entered US after receiving green card, and returned back in Canada in 1 week. I applied for my SSN in US but have it mailed to me and received it in Canada.

After receiving SSN, I got a job with US company but working remotely from Canada. So my employer deducts Federal deductions (Tax +FICA). However state tax is not deducted as I am working remotely from Canada.

I will not be physically staying in US for the whole of 2022, except few days (at the most 15 days during 2022).

pk_

Level 15

@asitamin , in such a case, you are a resident of the USA from the day you were admitted with the GreenCard by the USIS and thus you need / needed to file your US return on form 1040 (NOT 1040-NR). You are therefore also subject to FBAR and FATCA regulations -- just note however while FBAR threshold remains at US$10,000 the FATCA ( form 8938 ) is based on your filing status and tax-home ( domestic or foreign). Also because you have a foreign tax home , you can avail yourself of "foreign earned income' exclusion eligibility and/or foreign tax credit ( for taxes paid to Canadian tax authorities) -- you will obviously have to "resource" your remote earnings to Canada ( where the work is done) -- you may indeed have no US sourced income.

It is not hard to do this , but it may be easier ( at least for the first year ) to have a tax professional ( whom is familiar with international taxation) do this for you. There must be tons of such people in Canada -- lots of Canadians must be working remotely for US entities.

Is there more I can do for you ?