U.S. Gift Tax
1. U.S. citizens and residents are subject to gift tax on all direct or indirect transfers of property, wherever located, for less than full and adequate consideration.
2. Non-resident aliens are subject to gift tax only on gifts of tangible personal property and real property located in the United States. IRC § 2511(a).
3. Gifts of intangible property made outside the United States are not subject to gift tax. IRC § 2501(a)(2).
4. Rules and Calculation of Tax:
(a) Since TAMRA, the same gift tax rates apply to non-resident aliens as U.S. citizens and residents.
(b) Non-resident alien donors are not entitled to the unified credit against gift tax.
(c) Non-resident aliens do qualify for the $13,000 per year donee exception for gifts to persons other than spouses. (IRC § 2503) In 2012, $139,000 annual exclusion for gifts to a spouse who is not a U.S. citizen. (§ 2523(i)(2))
(d) Non-resident aliens are not entitled to the gift tax marital deduction, unless the gift is to a U.S. citizen (IRC § 2523(i)).
(e) The charitable deduction is limited to gifts to certain charities (IRC § 2522(b)).
(f) A non-resident alien may not split gifts with a spouse (IRC § 2513(a)(1)).
5. Gift tax treaties may change these rules.
(a) Some of these treaties allow a marital deduction for gifts to non-citizen spouses and expand the availability of the charitable deduction.
(b) For example, the Australian and Japanese treaties may give a donor domiciled in those countries the right to use a portion of the unified credit for gift tax purposes.