IRS 1042-S Form – Reporting Amounts Paid to Foreign Persons

U.S. tax laws are hard enough for Americans to understand. They become even more challenging for non-residents who earn income from U.S. sources and receive an IRS 1042-S Form, Foreign Persons’ U.S.-Source Income Subject to Withholding.

Form 1042-S reports income paid to foreign individuals and entities subject to U.S. tax withholding. Millions of these forms are issued each year. This indicates the significant number of individuals caught in a complicated web of U.S. tax law.

If you’ve received Form 1042-S, you might feel uncertain about your tax obligations. You may also wonder whether you need to file a U.S. tax return. This is where Tax Samaritan can help. We help you understand your responsibilities, find the necessary forms, and ensure you complete your tax return accurately – all without paying more tax than you need to pay.

What is IRS Form 1042-S?

Companies and organizations in the United States use the form to report income paid to foreign persons. This includes non-resident aliens, foreign partnerships, foreign corporations, foreign estates, and foreign trusts subject to income tax withholding.

This form serves a similar purpose to the W-2 form used for U.S. residents. The 1042-S ensures that foreign workers know their income has been reported to the IRS and indicates the amount of tax withheld.

The form also reports payments even if no tax was withheld due to a tax treaty or exemption. This includes various types of income, such as specified Federal procurement contract payments to foreign nationals and distributions from publicly traded partnerships. The standard withholding rate for nonresident aliens is typically 30%, though exceptions exist, such as for scholarship or fellowship income for holders of F, J, M, and Q visas.

Who Must File The Form 1042-S?

A withholding agent must file an information return on Form 1042-S to report amounts paid to foreign persons that are reportable under the Internal Revenue Code. In general, every withholding agent or intermediary, whether U.S. or foreign, who has control, receipt, custody, disposal, or payment of any fixed or determinable, annual or periodic U.S. source income over foreign persons must file these forms with the IRS. It includes withholding on “effectively connected income” of partnerships and to Foreign Investment in Real Property Tax Act (FIRPTA) withholding.

TIP: Utilize the IRS’s Data Integrity tool before filing. This tool helps review the Form 1042-S data to identify potential errors, reducing the risk of penalties for incorrect filings

When to File Form 1042-S?

The withholding agent must file Form 1042-S annually for each calendar year in which payments subject to U.S. tax withholding were made to foreign persons. The form has multiple copies with specific deadlines:

• Copy A: This copy is due to the IRS by March 15th of the year following the payment.
• Copies B, C, and D: These copies must be provided to the recipient by the same date.
• Copy E: The withholding agent retains this copy for their records.

You can request an extension if you require additional time to file Form 1042-S. To do this, file Form 8809, “Application for Extension of Time to File Information Returns,” by the original due date. However, it’s important to note that this extension applies only to the filing of the form. It does not extend the payment deadline for any taxes owed.

Failing to file Form 1042-S on time without an approved extension or not paying any due taxes can result in penalties and interest charges.

Definition of Foreign Person

IRS criteria for mandatory income tax withholding define nonresident aliens as individuals who are not U.S. citizens or legal residents. Persons under this classification should file a return using IRS Form 1040NR. They should also use Form 1042-S to report amounts paid subject to income tax withholding.

Form 1042-S items in Box 7 US Federal Tax Withheld and Box 10 Withholding Credit determine if there has been withholding. There’s no withholding if those boxes contain a ‘0’ on a filing. Exceptions to taxation may be applicable and may also be specified by tax treaties of the recipient’s country of residence. Thus, it’s crucial to review the specific tax treaty provisions.

What Types of Payments Are Reported on the Form?

Form 1042-S reports several types of payments. You use it not only for reporting income or salary paid to a foreign worker but also for other payments, including:

• Wages and Salaries
• Scholarships and Fellowships
• Gambling Winnings
• Royalties
• Rents
• Dividends
• Pensions and Annuities
• Alimony
• Cancellation of Debt
• Deposits
• Payments for Services

Each type of income may have different withholding rates and requirements, especially if a tax treaty exists between the U.S. and the foreign person’s country of residence. These treaties can reduce or eliminate the withholding tax on certain types of income, but they also add complexity to the reporting process.

Note that each type of income requires a separate Form 1042-S. For example, if a foreign person receives multiple types of income, such as gambling winnings and book royalties, they will receive separate forms for each income type. Additionally, it is possible for a foreign person to receive both a 1042-S and a W-2 form. 

What Information Does Form 1042-S Contain?

Form 1042-S reports income paid to foreign persons to ensure proper withholding and reporting to the IRS. Here’s a breakdown of the key information included in Form 1042-S:

1. Recipient Information

It includes the recipient’s name, address, and taxpayer identification number (TIN) or foreign tax identification number. It also specifies the recipient’s country of residence for tax purposes and identifies whether the recipient is an individual, corporation, or another type of entity.

2. Income Codes

Each type of income reported is assigned a specific code. These codes help identify the income’s nature and ensure the correct tax treatment.  Examples of income codes are:

• Code 01: Interest paid by U.S. obligors—general
• Code 06: Dividends paid by U.S. corporations—general
• Code 09: Capital gains
• Code 15: Pensions, annuities, alimony, and/or insurance premiums
• Code 16: Scholarship or fellowship grants
• Code 18: Compensation for dependent personal services

3. Gross Income 

It details the total income paid to the recipient during the tax year.

4. Withholding Amounts

It specifies the amount of U.S. tax withheld from the income by the withholding agent.

5. Exemption Codes

These codes explain any exemptions applied to the withholding, often based on tax treaties. 

6. Withholding Agent Details

It includes the name, EIN, and address of the withholding agent.

7. Tax rate

It specifies the tax rate at which the income was withheld. This rate varies depending on the income type and applicable tax treaties.

TIP: For withholding agents, consider truncating the recipient’s TIN on their copy of Form 1042-S. This measure helps protect sensitive information and complies with IRS guidelines, but remember not to truncate TINs on the IRS’s copy.

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Real Estate Income and IRS Form 1042-S

The U.S. real estate market continues to attract foreign investors, despite economic uncertainties and regulatory challenges. Moreover, a key requirement for foreign investors owning U.S. rental property is reporting rental income and paying the associated taxes. When foreign individuals receive rental income from U.S. properties, they face a 30% withholding tax on the gross rents. Form 1042-S, “Foreign Person’s U.S.-Source Income Subject to Withholding,” documents this withholding annually.

Rental Income Withholding for Foreign Persons

Foreign investors who receive rental income from U.S. properties must comply with the U.S. tax code, which considers rental income a passive activity. The IRS mandates a 30% withholding tax on these earnings. This mandatory withholding ensures compliance with U.S. tax laws and facilitates the payment of taxes. The withholding agent, often the property manager, is responsible for withholding the tax and reporting the income and withheld amount on Form 1042-S.

Election to Treat Rental Income as Effectively Connected Income

Foreign investors can elect to have their rental income treated as effectively connected with a U.S. trade or business. This election allows the income to be taxed on a net basis, considering allowable deductions for expenses rather than the flat 30% withholding on gross income. To make this election, investors must submit a completed Form W-8ECI to their property manager, indicating their intent to treat the rental income as effectively connected income. This form must include a valid U.S. tax identification number (ITIN). Once the election is made, it cannot be revoked without IRS consent.

Role of the Withholding Agent

A property manager collecting rent on behalf of a foreign owner acts as a withholding agent. The agent is personally and primarily liable for ensuring they withhold and report the correct amount of tax. The IRS requires that agents issue Form 1042-S to both the IRS and the payee by March 15 of the following calendar year. Failure to comply with holding requirements can result in penalties, interest, as well as also potential criminal sanctions against the withholding agent. The withholding agent’s liability includes any amounts that should have been withheld, plus interest and penalties.

Filing Requirements and Compliance for Foreign Investors

Foreign investors must file a U.S. tax return to report their rental income, regardless of whether it is treated as passive or effectively connected income. Likewise, if the rental income is treated as effectively connected, the investor can deduct eligible expenses to reduce the taxable income. Some common deductible rental expenses include advertising, maintenance, depreciation, insurance, mortgage interest, and property taxes. Consequently, foreign investors can reduce their taxable income significantly.

Importance of Obtaining an ITIN

Foreign investors need an Individual Taxpayer Identification Number (ITIN) to file their U.S. tax returns and make the election to treat rental income as effectively connected income. An ITIN can be obtained by submitting Form W-7 to the IRS. Once obtained, the ITIN must be included on all relevant tax forms and submissions.

TIP: File and Apply for your ITIN well before tax deadlines to avoid delays in filing your U.S. tax returns. The process can take several weeks, so early application ensures you meet all filing requirements on time​.

FAQ on Form 1042-S

1. What to Do If You Receive a Form 1042-S?

If you receive a Form 1042-S, start by reviewing it to ensure all information is accurate, including your personal details, the type of income, and the amount of tax withheld. If there are errors, contact the issuer for corrections. You must typically file a U.S. tax return using Form 1040NR to report the income and claim any refunds. Additionally, if you don’t have a U.S. taxpayer identification number, you must apply for an ITIN by attaching Form W-7 to your return.

2. What should I do if I do not receive my Form 1042-S?

If you did not receive your Form 1042-S by the expected date, contact the issuer, such as your employer or financial institution, to request a copy. Ensure that your contact information is up to date to avoid any delays.

3. Can I File Form 1042-S electronically?

Yes, financial institutions and other entities that issue multiple Form 1042-S documents must file them electronically through the IRS’s FIRE (Filing Information Returns Electronically) system.

4. Can I claim a refund for over-withheld taxes reported on Form 1042-S?

Yes, if the agent withheld too much tax, you can claim a refund by filing Form 1040NR and attaching your Form 1042-S as proof of the withheld tax. However, keep in mind that the statute of limitations permits you to file a refund claim only within three years of the issuance date of Form 1042-S.

5. What Are the Fines and Penalties for Incorrectly Filing Form 1042-S?

When you handle IRS Form 1042-S, ensure you file the form accurately and promptly. The IRS penalizes paper and electronic filers for late, incorrect, or incomplete submissions. 

Failure to File or Incorrect Filing

If you fail to file a correct and complete Form 1042-S by the due date, or if you file an incorrect form, you may incur a penalty. This penalty applies to each form that is either late or incorrect. The IRS adjusts the specific penalty amounts annually for inflation, and they vary based on how late you file the form:

• Up to 30 days late: $60 per form.
• More than 30 days late but before August 1: $120 per form.
• After August 1 or not filed at all: $310 per form.

These penalties can accumulate quickly, especially if you file multiple forms incorrectly or late.

Intentional Disregard

If the failure to file correctly or on time is due to intentional disregard of the filing requirements, the penalties are significantly higher. For 2024, the penalty is $630 per form or 10% of the total amount that should have been reported, whichever is greater. This penalty has no maximum limit. Therefore, it is crucial to comply with the reporting requirements.

Failure to Furnish the Correct Form to Recipients

Not only must you file Form 1042-S with the IRS, but you also need to provide correct copies to the recipients. Failure to do so, or providing incorrect information, can result in additional penalties of up to $310 per form for the 2024 filing year. This penalty also increases if there is intentional disregard for furnishing correct statements.

Electronic Filing Requirements

If you must file Form 1042-S electronically but fail to do so without an approved waiver, you may face penalties unless you can show reasonable cause. The IRS applies this penalty separately for original and corrected returns.

TIP: To avoid these penalties, ensure all forms are complete, accurate, and timely filed. Consider requesting an extension well before the deadline if you anticipate any issues. 

Tax Samaritan is Your Form 1042-S Tax Filing Solution

With a reputation for helping individuals achieve their tax and financial goals, Tax Samaritan stands as a premier international tax accounting firm experienced in assisting taxpayers who have received a 1042-S form. Our team of enrolled agents brings the convenience and expertise of a local office to you, whether you are abroad or in the United States. We aim to make U.S. tax preparation both accessible and straightforward, offering expert advice and comprehensive tax solutions to our clients.

If you’re a U.S. taxpayer requiring assistance with a Form 1042-S or another tax or financial accounting issue, we can help make the process easy for you. Experience the straightforward approach to tax and financial services with Tax Samaritan.

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