Lawyer Huang Huili’s legal mailbox (2)

Lawyer Huang Huili’s legal mailbox (2) (Alberta Times) 1. Is it necessary to declare in the overseas asset declaration FBAR when investing in real estate or buying and selling real estate overseas...

(Alberta Times)

1. Do investments in real estate or real estate transactions abroad need to be reported in the overseas asset declaration FBAR? Answer: Starting from the 2011 tax year, the declaration of overseas financial assets (Form 8938) will be officially included in the personal declaration (Form 1040). File Form 8938 with the Internal Revenue Service, with a declaration threshold of 50,000 yuan for overseas financial assets, including bank deposits, stocks, company shares, capital held by partners, trust properties, copyrights, etc. The penalty for failing to report Form 8938 is US$10,000. If the IRS discovers that the report has not been filed after 3 months of notification, the penalty will be increased by US$10,000 per month, up to a maximum of US$50,000. Neither self-occupied nor investment real estate needs to be reported on Form 8938, but foreign bequests of real estate worth more than $100,000 must be included in Form 3520 and attached to Form 8938. Profits from real estate transactions do not need to be reported in 8938, but the capital gains exemption of 500,000 for couples who have lived in the home for three years in the past five years (250,000 for single householders) implemented since 1997 does not apply to the sale of houses outside the United States.

2. My husband and I, both 80 years old, received ten-year green cards in July 2003, expiring in 2013. However, my husband has been ill since 2008 and has been living in China since returning to China in 2009. Because of his illness, I spent most of my time with him in China. I try to live in China no more than 6 months a year, but in 2011 I lived in China for 10 months. Now that my husband's condition has stabilized, he is eager to return to the United States. Do we need a lawyer at the airport? Even if my husband is allowed into the United States, can he keep his green card? Answer: U.S. immigration law generally stipulates that if a green card holder leaves the United States for one year or more without a re-entry permit, he is deemed to have given up his right to permanent residence. Unless the reason for being unable to permanently reside in the United States is beyond the control of the permanent resident. Depending on your situation, you can go to the U.S. Embassy or Consulate in China, submit all the evidence, and request a special immigrant visa. Once approved, your husband can enter the United States as a permanent resident without having to worry about accidents at the airport. It would also be beneficial if your husband was trying to enter the United States with his medical records and explain his situation to Customs and Border Protection (CBP) at the airport, as some immigration officers may be more sympathetic than consulate officers. Customs and Border Protection will tell you that you do not have the right to be represented by an attorney at the airport. If the agency grants a waiver and allows your husband to enter the United States, they will not take away his green card. If Customs and Border Protection denies your husband a waiver, he has the right to pursue his rights with an immigration judge. If so, Customs and Border Protection may release him and give him a court date. Only then does he have the choice whether to be accompanied by a lawyer to court.