The United States has two personal income tax returns. Form 1040 is the one Americans file. Form 1040-NR is the one everyone else files. You do not get to pick between them. The IRS decides which one is yours by running the green card test and the substantial presence test, and whatever those tests say is the answer.
Form 1040-NR is called the U.S. Nonresident Alien Income Tax Return. It is a personal return, filed by a person, about that person's income. It is not a company return. That distinction is where most founders get lost, because they already file something for their LLC and they assume the company filing covers them too. It does not.
Two mistakes happen here, and they pull in opposite directions. Some founders file nothing personally, because they believe a foreign owner of a U.S. company has no personal filing to make. Others file Form 1040 by accident, because that is the form every American tax article talks about, and they end up claiming deductions that are not open to them.
What the rule actually requires
The IRS lists who has to file. The main group is a nonresident alien who was engaged in a trade or business in the United States during the tax year. That is true even if the business produced no income and even if none of the income is taxable under a treaty.
There is a second group in the instructions that founders skip. A nonresident alien who was not engaged in a U.S. trade or business still has to file if they received U.S.-source income reportable on Schedule NEC and not all of the U.S. tax owed on it was withheld at source. The form is also used by a representative or fiduciary who files on behalf of a deceased person, an estate or a trust.
Read the first trigger carefully. It is being engaged in a trade or business in the United States. The trigger is not "made a profit." You can be required to file Form 1040-NR in a year when your U.S. business lost money and you owe zero tax. Filing is a separate duty from paying.
When it is due
There are two dates, and the split is not about how much you earned. It is about whether you had wages with U.S. tax withheld.
April 15, 2026, if you were an employee and received wages subject to U.S. income tax withholding. That is the wording in the Instructions for Form 1040-NR. It is the case where an American employer already took tax out of your paycheck.
June 15, 2026, if you did not. This is not a courtesy extension. It is the statutory due date. IRC § 6072(c) sets the return of a nonresident alien individual "other than those whose wages are subject to withholding under chapter 24" on the fifteenth day of the sixth month after the close of the tax year, and 26 CFR § 1.6072-1 repeats it. For a calendar-year filer that is June 15.
A founder who lives abroad, owns a U.S. LLC and pays themselves no American payroll normally has no wages subject to withholding, which puts them on the June date. Note that the "office or place of business in the United States" condition you may have read elsewhere sits in the part of § 6072(c) that governs foreign corporations, not individuals. It does not pull an individual back to April 15.
Two cautions. A later due date is not more time to pay, and an extension request is a separate step. If you are unsure which group you are in, the deciding question is narrow: were any wages paid to you with U.S. income tax withheld.
If withholding already covered everything
Some people have only fixed or determinable annual or periodical income from U.S. sources, often called FDAP income. It is taxed at a flat 30 percent, or a lower treaty rate, with no deductions allowed against it, and it is normally withheld at source by the payer.
If you were not engaged in a U.S. trade or business and every dollar of U.S. tax you owed on that income was withheld at source, the filing requirement above does not catch you. You would file anyway only for one reason: to get back tax that was over-withheld. Check your own numbers against the conditions in the instructions rather than assuming the withholding was exact.
The standard deduction is closed to you
An American filer subtracts the standard deduction from their income before tax is calculated. A nonresident alien generally cannot. The instructions state the exception, and it is narrow: students and business apprentices eligible for the benefits of Article 21(2) of the United States–India Income Tax Treaty.
The effect is arithmetic, not philosophy. Two people can earn the same amount of U.S. business income. The one who files Form 1040 starts subtracting from a lower taxable base. The one who files Form 1040-NR does not, unless that narrow treaty exception applies. Deductions connected to your U.S. business are a separate question and are handled elsewhere on the return.
🇺🇸 If the IRS counts you as a U.S. person
You do not file Form 1040-NR. You file Form 1040, and you report the money you earn anywhere in the world, not only the money that came from the United States.
Note what does and does not put you in this group. Owning a U.S. company does not. Days in the country do. The substantial presence test counts every day of the current year, one third of the days in the year before, and one sixth of the days in the year before that. You also need at least 31 days in the current year for the test to apply at all.
If you spend 130 days a year in the United States for three years running, the count is 130 + 43 + 22 = 195 days. That is over the 183-day line, so the default result is that the IRS treats you as a resident and the correct return becomes Form 1040. Nobody sends you a letter when this happens. You have to count the days yourself.
The default has an exception. If you were present fewer than 183 days in the current year itself, kept a tax home in a foreign country, and had a closer connection to that country than to the United States, you can still be treated as a nonresident. You get this by filing Form 8840 to claim it. In the 130-day example the current-year count is 130, which is under 183, so the exception is available. It is a claim you have to make, not a status that applies automatically.
At 120 days a year, the count is 120 + 40 + 20 = 180 days. You are under the line on the three-year test itself, and Form 1040-NR remains your return with nothing to claim.
🌏 If it does not
Form 1040-NR is your personal return, and you file it if you were engaged in a trade or business in the United States during the year.
Three points that founders miss:
- The company's filing is not your filing. If you are the foreign owner of a single-member U.S. LLC, the LLC has its own duty to file Form 5472 with a pro forma Form 1120. That is a company-level filing about transactions between you and the company. It says nothing about your own income tax, and it does not replace Form 1040-NR.
- Zero tax does not mean zero filing. The duty to file follows from being engaged in a U.S. trade or business, not from having a profit.
- The S-corporation door is locked, not merely unattractive. Under IRC § 1361(b)(1)(C), a nonresident alien cannot be a shareholder of an S corporation. This is about tax residence, not passports: a resident alien can hold S-corporation shares, and a nonresident alien cannot.
The fork
| 🇺🇸 U.S. person | 🌏 Not a U.S. person | |
|---|---|---|
| Your personal return | Form 1040 | Form 1040-NR |
| What the U.S. taxes | Everything you earn, anywhere | Income effectively connected with a U.S. trade or business, plus U.S.-source FDAP income |
| Standard deduction | Yes | No, unless you are a student or business apprentice covered by Article 21(2) of the U.S.–India treaty |
| Due date | The ordinary April filing date | April 15 if you were an employee with wages subject to U.S. withholding. June 15 if you were not (IRC § 6072(c)) |
| S-corporation shares | You may hold them | Prohibited by IRC § 1361(b)(1)(C) |
| Single-member LLC you own | Reported on your Form 1040 | The LLC files Form 5472 with a pro forma 1120, and that is in addition to, not instead of, your own return |
Common mistakes
🇺🇸 If the IRS counts you as a U.S. person
- Filing Form 1040-NR because you live abroad. Living abroad does not make you a nonresident for tax. A green card held for even one day in the year keeps you on Form 1040.
- Crossing the substantial presence line while visiting your own U.S. customers, and continuing to file Form 1040-NR out of habit. Count the days, including the two previous years at one third and one sixth. If you crossed the line on the three-year count but were in the country fewer than 183 days this year, the closer connection claim on Form 8840 is the thing you have to file, not something you assume.
🌏 If it does not
- Believing that Form 5472 and the pro forma 1120 are "the U.S. tax filing." They are the company's filing. Form 1040-NR is yours.
- Filing nothing because the business lost money. The duty to file comes from being engaged in a U.S. trade or business, not from making a profit.
- Claiming the standard deduction after reading advice written for Americans. It is not available to you unless the U.S.–India treaty exception applies.
- Assuming the April 15 date applies to you. It is stated for employees with wages subject to U.S. withholding. If you had no such wages, your date is June 15 under IRC § 6072(c).
FAQ
Who has to file Form 1040-NR?
A nonresident alien who was engaged in a trade or business in the United States during the tax year. Also a nonresident alien who was not engaged in a U.S. trade or business but received U.S.-source income reportable on Schedule NEC on which not all of the tax owed was withheld. The form is also used by a representative or fiduciary filing on behalf of a deceased person, an estate or a trust.
Do I still file if my U.S. business made no money?
Yes, if you were engaged in a trade or business in the United States. The filing duty and the tax bill are two different things. A year with no profit can still be a year with a return to file.
When is Form 1040-NR due?
April 15, 2026, if you were an employee and received wages subject to U.S. income tax withholding. June 15, 2026, if you were not. The June date is statutory, set by IRC § 6072(c) and 26 CFR § 1.6072-1 at the fifteenth day of the sixth month after the close of the tax year. A founder with a U.S. LLC and no American payroll is normally on the June date. Confirm the exact day in the current IRS instructions, since a due date that lands on a weekend or holiday moves.
I already file Form 5472 for my LLC. Does that cover me?
No. Form 5472, filed with a pro forma Form 1120, is a filing by the company about its transactions with you. Form 1040-NR is your personal income tax return. One does not replace the other.
Can I take the standard deduction on Form 1040-NR?
Generally no. The one exception in the instructions is for students and business apprentices eligible for Article 21(2) of the United States–India Income Tax Treaty.
Does owning a U.S. LLC mean I file Form 1040 instead?
No. Where your company is registered and where you are a resident for tax are separate questions. Your LLC can be American while you remain a nonresident alien, and in that case Form 1040-NR stays your return.
I am a nonresident alien. Can I elect S-corporation status for my company?
No. IRC § 1361(b)(1)(C) does not allow a nonresident alien to be a shareholder of an S corporation. The test is tax residence, not citizenship. A resident alien may hold S-corporation shares.
All the U.S. tax on my income was withheld at source. Do I still need to file?
If you were not engaged in a U.S. trade or business, your U.S. income was FDAP reported on Schedule NEC, and all the tax you owed on it was withheld, the filing requirement does not reach you. You would file only to claim a refund of tax that was over-withheld. The condition to check is "all," not "some": if any of the tax owed went unwithheld, you are back in the must-file group.