U.S. gift tax can apply to nonresident aliens under certain circumstances. Gifts of tangible personal property and real property by nonresident aliens are subject to gift tax only if the property is located in the United States. Gifts of U.S. intangible property by nonresident aliens are not subject to gift tax.
Nonresident aliens receive a $60,000 exemption from U.S. estate tax, which is equivalent to a $13,000 unified credit. Unlike U.S. citizens and resident aliens, this unified credit may not be used to offset U.S. gift tax. The unified credit allowed to nonresidents may be applied against estate tax only. The attached table shows the unified transfer tax rate schedule for the tax years after 2012.
Nonresident alien spouses may not split gifts as the tax law requires both the donor and spouse to be U.S. citizens or resident aliens.
Effective January 1, 2018, nonresident aliens are entitled to the $15,000 annual gift tax exclusion available to U.S. citizens and residents. Effective July 14, 1988, the annual gift tax exclusion for gifts made to a non-U.S. citizen spouse increased to $100,000. Since 2002, this annual exclusion has increased each year and in 2021 the exclusion is $159,000. The attached table shows the amount of the annual gift tax exclusion for gifts made to a non-U.S. citizen spouse.
U.S. gift tax does not apply at the creation of a tenancy by the entireties, even if only one spouse contributes to the cost. Gift tax applies at the termination of the tenancy (i.e., sale of the property) other than by death of a spouse.
Currently, the U.S. has gift tax treaties in effect with Australia, Austria, Denmark, France, Germany, Japan and United Kingdom.
ANNUAL GIFT TAX EXCLUSION FOR NONCITIZEN SPOUSE
|JULY 14, 1988 – DECEMBER 31, 2001||100,000|
UNIFIED TRANSFER TAX RATE SCHEDULE FOR TAX YEARS AFTER 2012
|COLUMN A||COLUMN B||COLUMN C||COLUMN D|
|TAXABLE AMOUNT OVER||TAXABLE AMOUNT NOT OVER||TAX ON AMOUNT IN COLUMN A||RATE OF TAX ON EXCESS OVER AMOUNT IN COLUMN A|