Can one be non-resident alien in the US without being a resident anywhere else?
My question is as above: Can one be non-resident alien in the US without being a resident anywhere else?
Let's assume the following simplified case: a former resident of Germany visits the US for a full calendar year of research on a J visa (his first stay in the US ever). He receives a German scholarship in a form that would be taxable in Germany. Hence, he ends his residency ("Wohnsitz") in Germany in order to avoid tax liability in Germany. Still, he is considered a non-resident alien for US tax purposes because he is exempt of counting days, and his scholarship is not US source income since it is non-compensatory, is primarily intended to support your own personal research or study, and is from a non-US payer. The tax treaty between Germany and the US because he is neither a resident of the US nor of Germany. So his scholarship is not taxable in the US nor in Germany.
Where is the flaw in the described situation? I guess it is that if you are not a resident of Germany (and hence cannot claim German residence for tax purposes on Schedule OI of Form 1040NR-EZ), you are not exempt of counting days of presence in the US. Still, I have not found any citeable source to support this guess; in particular, Form 8843 does not ask for residence at all.
Update: The tax treaty
shall apply to persons who are residents of one or both of the
Contracting States, except as otherwise provided in this Convention.
This is article I of the tax treaty with Germany; in the 2006 protocol, this one has been subject to major additions, though.
In the version of the 2006 protocol (article II), the definition of residence is the following (article IV, paragraph 1):
“1. For the purposes of this Convention, the term "resident of a Contracting State"
means any person who, under the laws of that State, is liable to tax therein by
reason of his domicile, residence, place of management, place of incorporation, or
any other criterion of a similar nature, and also includes that State and any political
4
subdivision or local authority thereof. The term, however, does not include any
person who is liable to tax in that State in respect only of income from sources in
that State or of profits attributable to a permanent establishment in that State or
capital situated therein.”
Article IV, paragraphs 2 and 3 then only deal with residents of both Contracting
States.
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You may be considered a resident for tax purposes.
To meet the substantial presence test, you must have been physically present in the United States on at least:
31 days during the current year, and
183 days during the 3 year period that includes the current year and the 2 years immediately before. To satisfy the 183 days requirement, count:
All of the days you were present in the current year, and
One-third of the days you were present in the first year before the current year, and
One-sixth of the days you were present in the second year before the current year.
If you are exempt, I'd check that ending your residence in Germany doesn't violate terms of the visa, in which case you'd lose your exempt status.
If you are certain that you can maintain your exempt status, then the income would definitively not be taxed by the US as it is not effectively connected income:
You are considered to be engaged in a trade or business in the United States if you are temporarily present in the United States as a nonimmigrant on an "F," "J," "M," or "Q" visa. The taxable part of any U.S. source scholarship or fellowship grant received by a nonimmigrant in "F," "J," "M," or "Q" status is treated as effectively connected with a trade or business in the United States.
and your scholarship is sourced from outside the US:
Generally, the source of scholarships, fellowship grants, grants, prizes, and awards is the residence of the payer regardless of who actually disburses the funds.
I would look into this from a German perspective. If they have a rule similiar to the US for scholarships, then you will still be counted as a resident there.
If you aren't a US National (citizen or Green Card holder or some other exception I know not of), you're an alien, no matter where else you may or may not be a citizen.
If you don't meet the residency tests, you're nonresident.
Simple as that.
You'll need to read carefully the German laws on tax residency, in many European (and other) tax laws the loss of residency due to absence is conditioned on acquiring residency elsewhere.
But in general, it is possible to use treaties and statuses so that you end up not being resident anywhere, but it doesn't mean that the income is no longer taxed.
Generally every country taxes income sourced to it unless an exclusion applies, so if you can no longer apply the treaty due to not being a resident - you'll need to look for general exclusions in the tax law. I don't know how Germany taxes scholarships under the general rules, you'll have to check it. It is possible that they're not taxed.
Many people try to raise the argument of "I'm not a resident" to avoid income taxes altogether on earnings on their work - this would not work. But with a special kind of income like scholarship, which may be exempt under the law, it may.
Keep in mind, that the treaty has "who is or was immediately
before visiting a Contracting State a resident of the other Contracting State" language in some relevant cases, so you may still apply it in the US even if no longer resident in Germany.
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