Dual resident taxpayer ??

oswaldle1 · Post by **oswaldle1** » Mon Feb 16, 2015 8:42 pm

I am new to the taxes and being searching on internet all the material possible (thanks nelsona) and impossible about taxes (yeah, welcome to US) , however still questions to clarify raise.

The other day i had the problem to tell my wife if we are "US personâ€ or not, even if we moved in April 2014 from Canada:

"You would be a US person if you meet either the substantial presence test (with exceptions) or the green card test (thatâ€™s what IRC 7701(b)(1)(A) is telling us)".
Obviously i told my wife that yes, we are considered US even if i am on TN and she is J1.

BUT, "Where an individual leaves Canada after May 26, 1980, the following factors will be taken into consideration in determining whether or not the individual will remain a resident of Canada for tax purposes while abroad:

permanence and purpose of stay abroad,
residential ties within Canada,
residential ties elsewhere, and
regularity and length of visits to Canada" (quote from http://www.serbinski.com/working-in-usa ... tion.shtml)

We do have a home that is rented at this moment in Canada (for a year), as well as some mutual funds RRSP and 2 bank accounts, hence we are theoretical resident of 2 countries.

So i got very confused javascript:emoticon(':shock:'). Tried to call different tax accountants in the past 1 month, they have different opinion, some asked me to fill the 8833 form, some said no need... my question is do i make a treaty election to be a U.S. nonresident? javascript:emoticon(':roll:')

nelsona · Post by **nelsona** » Mon Feb 16, 2015 11:09 pm

Since she is on J1, she -- on her own - -would not be considered US resident.

However since you are by your tN, she is also.

All that stuff about ties is meaningless. You live and work in US with spouse. That trumps.

oswaldle1 · Post by **oswaldle1** » Tue Feb 17, 2015 1:47 am

Thanks so much NelsonA .

I had that feeling on J1 and that's why some said you are , some don't. In other words, what you are saying is that because i am on TN and we met SPT that makes both of us residents for tax purpose (and Cdn non-residents). Is that right?

In addition, was i supposed to send CRA 25% of the house rent every month? I didn't know about this and i guess it is too late, but i will try to fix it somehow (http://www.cra-arc.gc.ca/E/pub/tg/t4144 ... P153_11899) ..

Also, on the another post (http://forums.serbinski.com/viewtopic.p ... =house+own) , i found out that i was supposed to do a departure tax, but in my case , the house and RRSP do not assets that are subject to the departure case. Is that correct?
"Some assets do not give rise to tax upon departure at all. For example, all Canadian real estate is exempt from departure tax, as are registered retirement savings plans (RRSPs) and registered retirement income funds. Examples of assets that are subject to departure tax are all stocks and bonds held outside registered accounts, and shares of private corporations.". Will declare the RRSP in both 8938 and FinCen 114. Do i need 3520 as well for any small interest that i have (the tfsa i closed it last week)

nelsona · Post by **nelsona** » Tue Feb 17, 2015 10:43 am

You need to declare all accounts you had in 2014 on FinCen and 8938. You may hav otherreporting to. 3520 would apply to TFSA unless it is not a trust.

oswaldle1 · Post by **oswaldle1** » Tue Feb 17, 2015 7:32 pm

Thanks nelsona, my TFSA was simple, with money only with a bit of interest added , not invested in anything. I will not fill the 3520 in this case.