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Making the §871(d) Election: A Smart Move for Nonresident Aliens with U.S. Rental Property

What Is the §871(d) Election?
Section 871(d) of the U.S. tax code lets a nonresident alien elect to treat rental income from U.S. real property as effectively connected with a U.S. trade or business. In doing so, the taxpayer may:

  • File Form 1040-NR

  • Deduct ordinary and necessary rental expenses

  • Pay tax only on net income, using graduated tax rates

Without the election, rental income is taxed at 30% of gross receipts, and no deductions are allowed.


Who Should Make the Election?
This election is highly beneficial if you:

  • Are a nonresident alien (not a U.S. citizen or green card holder)

  • Own U.S. real estate that generates rental income

  • Incur expenses like mortgage interest, property tax, repairs, and depreciation

  • Want to avoid flat 30% withholding on gross rent


How Do You Make the Election?
To make the §871(d) election:

  1. File Form 1040-NR for the tax year in question

  2. Attach a signed statement to your return that includes:

    • A declaration that you're making the §871(d) election

    • Description of each property, including address, ownership interest, and rental period

    • Gross income from each property

    • Any prior years in which you made or revoked this election

Note: The election must be made with a timely filed return (including extensions) and only needs to be made once, it will apply to future years unless revoked.


Revoking the Election
To revoke the election:

  • File an amended return (Form 1040-X) within the statute of limitations (generally 3 years), or

  • Request IRS approval if you’re beyond the time limit

Once revoked, the election can’t be made again without IRS consent.



Bottom Line
The §871(d) election is a valuable tax-saving strategy for nonresident aliens with U.S. rental properties. By switching from gross to net taxation, you can unlock deductions and minimize your tax burden.

Need Help Making the Election?
We help international clients navigate this process with precision, email us @info@nggtaxgroup.com to discuss your situation.

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