When it comes to cross-border estate planning, one of the most misunderstood areas for foreigners is the U.S. gift tax. Many non-citizens assume they are exempt from U.S. transfer taxes entirely — or that only American citizens need to worry about filing a gift tax return. Unfortunately, that’s not the case.
The Internal Revenue Service (IRS) imposes a gift tax on the transfer of property from one person to another without receiving full value in return. This tax applies whether or not the giver (also known as the donor) intends to make a gift. While most U.S. persons are familiar with the annual gift tax exclusion and lifetime exemption, the rules are very different — and often much stricter — for nonresident non-citizens (NRNCs).
For example, if a nonresident foreign individual gives U.S. real property or tangible personal property located in the U.S. to a friend, child, or spouse, that transfer could be subject to U.S. gift tax, even if the donor has no other U.S. ties. And unlike estate tax, there is no unified gift tax exemption available to foreigners. In fact, lifetime gifts by NRNCs are generally taxable from the first dollar if they involve U.S.-situs assets.
Our estate planning attorneys explore the nuances of U.S. gift tax rules for foreigners, including what property is taxed, who must file, how to comply with IRS rules, and planning strategies to avoid unnecessary exposure. Whether you are a U.S. citizen with foreign family members, a global entrepreneur with U.S. holdings, or a non-U.S. person planning to transfer assets to American beneficiaries, understanding the gift tax is essential.
We’ll also explore how the estate tax interacts with lifetime gifts, when to file Form 709, and the limits of the unlimited marital deduction when gifting to a non-citizen spouse.
Let’s begin by understanding how the IRS determines whether a transfer is considered a gift — and why that classification matters so much for foreign individuals.
Before diving into who is subject to gift tax and how much can be given tax-free, it’s important to understand what the IRS considers a “gift” in the first place. For gift tax purposes, the term has a specific meaning—and it’s not always intuitive.
According to the IRS, a gift occurs when someone transfers property (or the right to use or benefit from property) to another person without receiving full consideration in return. That means if the value given is more than the value received, the excess is potentially a taxable gift.
Key elements include:
Importantly, this definition applies to both tangible personal property (like jewelry, art, or furniture) and intangible property (such as stocks or partnership interests).
For a transfer to count as a gift for gift tax purposes, the donor must have a definite present intention to give the asset away. In other words, the gift must be complete and irrevocable. A promise to give something in the future, or a conditional transfer, does not qualify until those conditions are satisfied.
This requirement is especially important in cross-border contexts, where cultural norms or legal structures may delay or complicate the moment when legal ownership actually shifts.
One of the most common misconceptions is confusing gifts with income. While income is generally subject to income tax, gifts are not—to the person receiving them. In the U.S., the gift tax falls on the giver, not the recipient (unless the giver fails to pay, in which case the recipient may become liable).
However, gifts can still have income tax purposes in related contexts—for example, if gifted property generates income later. That income is taxable to the recipient from the date of the gift.
When it comes to gift tax rules, the most significant distinction is whether the donor is a U.S. person or a nonresident not a citizen (NRNC). For U.S. citizens and residents, the gift tax applies to worldwide assets. But for foreigners — especially those who do not live in the U.S. and are not U.S. citizens — the rules are much narrower, yet still consequential.
For gift tax purposes, a nonresident not a citizen is someone who:
This classification is distinct from the residency rules used for income tax. In the gift and estate tax context, “residency” is based on domicile — the place where a person intends to remain permanently or indefinitely. Even a brief period of residence in the U.S. can trigger domicile, depending on your intent and facts.
If a person is deemed to have U.S. domicile, they may become subject to worldwide gift and estate taxation, like a U.S. citizen.
Unlike U.S. persons, nonresidents not citizens are only subject to gift tax on certain types of U.S.-situs property. This includes:
This distinction is crucial: a nonresident can gift millions in U.S. stock without triggering gift tax, but a gift of U.S. real estate — even a small vacation home — is taxable.
🔍 Example: A French citizen gives his daughter a vacation home in Florida. Because the property is U.S.-situs real property, it is subject to gift tax — even though the donor is a foreign national who has never lived in the U.S.
The moment a foreign person transfers legal title to U.S.-situs tangible or real property, they may owe U.S. gift tax. Even if the recipient is also a non-U.S. person, the tax applies based on the nature and location of the transferred property — not the identity of the person receiving the gift.
For many U.S. citizens, one of the most valuable tools in gift and estate planning is the unlimited marital deduction. This rule allows spouses to transfer unlimited amounts of property to one another during life or at death without triggering gift or estate tax — but only if the recipient spouse is a U.S. citizen.
For foreign spouses, the rules are more restrictive, and missteps here can lead to unexpected gift tax liability.
The unlimited marital deduction is available only if the spouse receiving the gift is a U.S. citizen. This applies regardless of the citizenship or residency status of the donor.
For estate planning purposes, when transferring assets at death to a non-U.S. citizen spouse, the unlimited marital deduction is generally unavailable. However, a Qualified Domestic Trust (QDOT) may be used to defer U.S. estate tax on the transferred assets. Estate tax is then imposed only when distributions of principal are made from the QDOT, or upon the surviving spouse’s death. While QDOTs provide valuable flexibility, they do not apply to lifetime gifts — only to bequests at death.
✅ Example: A U.S. citizen gives $5 million to a U.S. citizen spouse — no gift tax applies, and no return is required.
❌ Example: A U.S. citizen gives $5 million to a non-U.S. citizen spouse — the unlimited marital deduction does not apply, and the amount is likely subject to gift tax beyond the annual exclusion limit.
When the recipient spouse is not a U.S. citizen, the law presumes a risk that the gifted property could be removed from the U.S. tax system. To address this, the IRS limits the amount that can be gifted tax-free using a special annual exclusion just for non-citizen spouses.
For 2025, the annual exclusion amount for gifts to a non-citizen spouse is $190,000 (indexed annually for inflation). This is higher than the standard exclusion ($19,000 in 2025 for gifts to anyone else), but still far from unlimited.
Anything above this amount is considered a taxable gift and requires the filing of Form 709.
🔍 Example: A U.S. citizen gives $250,000 to their non-U.S. citizen spouse in 2025. Only $190,000 is excluded. The remaining $60,000 is a taxable gift and must be reported.
Another wrinkle in planning: spouses who file jointly and are both U.S. persons can elect to “split gifts”—allowing one spouse to be treated as if half the gift came from each. This can double the exclusion amount and defer taxes. However, this option is not available when the recipient is a nonresident alien spouse.
So, if a U.S. person gives a gift to their non-U.S. citizen spouse, gift-splitting is off the table. Each gift must be evaluated individually.
Many foreign individuals mistakenly believe that Form 709, the U.S. gift tax return, only applies to U.S. citizens or green card holders. In reality, if a nonresident not a citizen (NRNC) makes a gift of U.S.-situs property that is subject to gift tax, they may be legally required to file Form 709 with the Internal Revenue Service (IRS).
Failing to file—even out of ignorance—can lead to penalties, interest, and missed planning opportunities. Here’s what you need to know.
Form 709 is required when a donor:
Even if no tax is due because of available exclusions, Form 709 must still be filed if the gift exceeds the annual threshold or if a gift is made to a non-citizen spouse.
🔍 Example: A foreign donor gives $500,000 worth of U.S. art (located in New York) to a friend. This is a taxable gift under U.S. gift tax rules, and Form 709 must be filed—even if the donor lives abroad and has never filed a U.S. return before.
You must report gifts that are:
Note: Gifts of intangible property, such as stock in U.S. corporations, generally do not need to be reported by a foreign donor—since these are not subject to gift tax.
If Form 709 is not filed on time, the IRS can impose:
However, if you had reasonable cause for failing to file, you may be able to avoid penalties by attaching an explanatory statement.
🛑 Tip: Even if no tax is owed, filing Form 709 starts the three-year statute of limitations, which helps protect against future IRS audits or disputes.
When advising foreign clients with U.S. ties, it’s essential to consider how gift tax and estate tax work together. While these are technically separate systems, they are deeply interconnected — and strategic lifetime gifts can play a crucial role in reducing U.S. estate tax exposure.
Unlike U.S. citizens and residents, nonresident non-citizens (NRNCs) do not receive the full applicable exclusion amount ($13.61 million in 2025) for estate and gift taxes. Instead, they are allowed a much smaller exemption — currently only $60,000 — for purposes of the federal estate tax.
And critically: this $60,000 exemption applies only to estate tax, not gift tax.
This means that foreign individuals generally have no lifetime gift tax exemption. Gifts of U.S. real estate or tangible property are taxable from the first dollar, unless they fall under the annual exclusion or the non-citizen spouse limit.
The situs rules — which determine whether property is located in the U.S. for tax purposes — are central to both the gift tax and estate tax regimes:
Property Type | Gift Tax for NRNC | Estate Tax for NRNC |
---|---|---|
U.S. real property | ✅ Taxable | ✅ Taxable |
U.S.-located tangible assets | ✅ Taxable | ✅ Taxable |
U.S. bank deposits | ❌ Not taxable | ❌ Not taxable |
U.S. corporate stock | ❌ Not taxable | ✅ Taxable |
Foreign assets | ❌ Not taxable | ❌ Not taxable |
This overlap means planning must account for both transfer taxes together. For example, a nonresident who owns U.S. real estate should consider gifting it during life, to remove it from their U.S. estate — but that gift may still be taxable on its own unless structured carefully.
Gifting U.S. assets during life — especially when values are lower — can reduce the U.S. estate tax at death. But because of the lack of a unified exemption for foreign donors, these gifts must be planned to:
🔍 Example: A Spanish national owns U.S. real estate worth $2 million. If he dies holding the property, it may be subject to estate tax with only a $60,000 exemption. But if he gifts the property today, he may trigger gift tax now, but remove the asset from his taxable estate later — possibly saving hundreds of thousands in estate tax.
Some countries have estate and gift tax treaties with the U.S. These treaties can:
Countries with treaties include: France, Germany, the U.K., Japan, and others. If a client resides in or is a national of a treaty country, the treaty should be carefully reviewed before structuring gifts or planning asset transfers.
One of the most common areas of confusion for international clients is the difference between the U.S. gift tax system (which affects givers) and the foreign gift reporting requirements (which affect recipients). These are separate regimes, governed by different rules, forms, and thresholds — but they often get mixed up.
Here’s how to keep them straight.
As discussed earlier, the U.S. gift tax applies to the person giving the gift, particularly if they are:
In these cases, the donor (giver) must file Form 709 and may owe tax if the gift exceeds applicable exclusions.
🎯 Key point: Form 709 is all about who gives the gift — and whether that transfer is subject to gift tax based on citizenship, domicile, and the location/type of property.
In contrast, Form 3520 is used by U.S. persons who receive large gifts or bequests from:
There is no tax due on the receipt of these gifts — but the reporting obligation is mandatory if the value exceeds certain thresholds:
🔍 Example: A U.S. resident receives $300,000 from her father in Germany. The daughter must file Form 3520, even though no tax is due. The father, as a nonresident foreign donor of intangible foreign assets, does not file Form 709.
Failure to file Form 3520 can result in steep penalties — typically 5% of the amount received per month, up to a maximum of 25%.
💡 Tip: When in doubt, remember:
- Form 709 = Filing by the giver of a U.S.-taxable gift
- Form 3520 = Filing by the recipient of a large foreign gift
Navigating U.S. gift tax and estate tax rules is complicated enough for citizens — but for foreigners, the risk of costly mistakes is even greater. Whether due to misunderstanding situs rules, missing filing obligations, or relying on assumptions that don’t apply to non-citizens, these missteps can lead to substantial tax exposure or even IRS penalties.
Here are the most common errors we see — and how to avoid them.
Foreign individuals frequently gift U.S. real property (vacation homes, investment property, etc.) to children, siblings, or spouses without realizing that this type of property is subject to U.S. gift tax. And unlike U.S. citizens, NRNCs do not get a lifetime gift tax exemption.
✅ Solution: Before gifting U.S. real estate, consider whether the transfer will trigger immediate gift tax, whether it might be better structured through a foreign entity, or whether it makes more sense to wait and plan for an estate transfer instead.
Many U.S. citizens assume they can gift unlimited amounts to a foreign spouse tax-free. But if the recipient spouse is not a U.S. citizen, the unlimited marital deduction does not apply.
✅ Solution: Use the elevated $190,000 annual exclusion for gifts to non-citizen spouses (2025), and consider other wealth transfer strategies such as QDOTs, annual installment gifts, or the use of foreign trusts.
Foreign individuals gifting U.S.-situs property (like real estate or tangible goods located in the U.S.) may believe they don’t have to file any forms — especially if no tax is ultimately due. But Form 709 is required to report the transfer and start the statute of limitations.
✅ Solution: Even if no tax is owed due to the annual exclusion or marital exemption, file Form 709 to avoid unlimited IRS look-back periods and potential penalties.
We often see U.S. recipients file Form 709 when they should have filed Form 3520 — or worse, failing to file either. As noted in the prior section, Form 709 is for donors, while Form 3520 is for U.S. recipients of foreign gifts.
✅ Solution: Carefully assess the direction of the gift (foreign-to-U.S. or U.S.-to-foreign) and whether it’s the giver or receiver who has the filing obligation.
Some foreign donors attempt to gift interests in U.S. LLCs, partnerships, or trusts, not realizing that depending on how they’re structured, these may be treated as tangible property (and therefore subject to gift tax) — especially if they hold U.S. real estate.
✅ Solution: Get advice before structuring gifts through entities. Use foreign entities or blockers when appropriate to ensure the gift is treated as intangible property and not taxed.
Foreigners often focus on gift tax alone, overlooking the fact that U.S.-situs property held at death may trigger estate tax, with only a $60,000 exemption for NRNCs.
✅ Solution: Use lifetime gifting strategically to remove assets from the U.S. estate tax net, but only after confirming whether gift tax will apply. Evaluate treaty benefits, discounts, or alternative holding structures to reduce future exposure.
Many estate plans prepared by U.S.-based advisors don’t account for non-citizen or nonresident status. Treating a foreign national like a U.S. person for tax purposes can result in invalid strategies, ineligible elections, or unintended tax consequences.
✅ Solution: Work with legal and tax advisors who specialize in international estate and gift tax planning, and tailor each strategy to citizenship, residency, and treaty status.
Understanding U.S. gift tax rules for foreigners can feel abstract until you see how they apply in real-world situations. Below are several common examples that illustrate key principles covered so far — and highlight why careful planning is essential.
Scenario:
A Canadian citizen (nonresident of the U.S.) owns a vacation condo in Florida worth $800,000. She decides to gift the condo to her adult son, who lives in Canada.
Analysis:
Result:
A large U.S. gift tax bill could arise unless planning steps (like using a foreign entity) had been taken earlier.
Scenario:
A Spanish citizen wires $300,000 from his personal Spanish bank account directly to his daughter, a U.S. citizen living in New York.
Analysis:
Result:
No tax owed, but Form 3520 must be filed timely to avoid harsh penalties.
Scenario:
A German citizen gifts shares of a German corporation to his nephew, who is a U.S. green card holder.
Analysis:
Result:
No U.S. gift tax on the transfer itself, but reporting requirements may still arise for the recipient.
Scenario:
A U.S. citizen gives $250,000 cash to his spouse, a citizen of Mexico who holds no U.S. green card or citizenship.
Analysis:
Result:
Proper reporting is essential, and gift tax could be owed on the amount over the exclusion unless structured differently.
The outcome of each situation hinges on the type of property, the citizenship or residency of the parties involved, and the location of the assets. Seemingly simple transactions can have complex tax consequences without careful planning.
The U.S. gift tax rules for foreigners are uniquely complex — and missteps can be costly. Whether you are planning a simple transfer of assets, structuring a large family gift, or managing cross-border estate plans, it’s critical to work with experienced advisors who understand both U.S. and international tax nuances.
Schedule a Consultation today to make sure your gift and estate planning strategies are fully optimized and compliant.
The U.S. gift tax applies to nonresident non-citizens (NRNCs) who gift U.S.-situs real property or tangible personal property located in the United States. Gifts of intangible property (like stock or foreign bank accounts) are generally not subject to U.S. gift tax for foreigners.
For 2025:
Foreign donors making gifts of U.S.-situs property can use the $19,000 exclusion, but lifetime exemptions (like the $13.61 million U.S. unified credit) are not available to NRNCs.
Failure to file Form 709 can result in:
If you had reasonable cause (such as misunderstanding a complex law), penalties might be waived, but you still must file as soon as possible.
They apply to very different situations but are often confused.
No. The unlimited marital deduction only applies if the receiving spouse is a U.S. citizen.
If the recipient is not a U.S. citizen, the donor can only use the special $190,000 annual exclusion for 2025. Anything above that amount is subject to gift tax.
Generally, no U.S. gift tax is due when a U.S. person receives a monetary gift from a foreign parent.
However, if the gift exceeds $100,000 in a calendar year, the U.S. recipient must file Form 3520 to report it — even though no tax is owed.
No. Nonresidents not citizens (NRNCs) do not have access to the U.S. lifetime gift tax exemption ($13.61 million for U.S. citizens and residents in 2025). Foreign donors must rely on the annual exclusion and careful planning instead.
Possibly. Strategies may include:
However, improper structuring can cause bigger problems. Professional planning is highly recommended.
April 28, 2025
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